LIBRARY 

OK  THK 

UNIVERSITY  OF  CALIFORNIA. 

OF* 


. 

Class 


THE  MAKING  OF  THE  TREATY  OF 
GUADALOUPE  HIDALGO  ON  FE,B= 
RUARY  2,  1848.  THE,  JAMES  BRYCE 
HISTORICAL  PRIZE.  ESSAY  FOR 
1905  *  4  BY  JULIUS  KLEIN 


The  Making  of  the  Treaty  of  Guadaloupe 
Hidalgo,  on  February  2,  1848 


THE  JAMES  BRYCE  HISTORICAL  PRIZE  ESSAY 
FOR  1905 


BY 

JULIUS    KLEIN 


[Reprinted  from  the  UNIVERSITY  CHRONICLE,  Vol.  VII,  No.  4] 


BERKELEY 

THE  UNIVERSITY  PRESS 
1905 


4 


TABLE   OF  CONTENTS. 

PAGE 

Introduction 3 

Part  I 6 

(a)   The  treaty  in  its  historical  aspect 7 

(1)  Early  attempts  to  gain  California 7 

(2)  Account  of  the  negotiations 8 

(3)  The  opposition  to  the  treaty  and  its  final  ratification.  .  17 
Part  II  22 

(a)   The  legal  aspect  of  the  treaty 23 

(1)  Its  contents  and  legality 24 

(2)  The  questions  of  international  law  involved 30 

(3)  Effect  of  the  treaty  upon  the  technical  or  legal  exten 

sion  of  boundaries   33 

(4)  The  Constitution  and  the  new  territory 36 

(5)  Status  of  the  acquisition  and  its  inhabitants  as  af 

fected  by  the  treaty 40 

(i)   Private  property  rights 40 

(ii)   Public  lands 41 

(iii)   Municipal  lands    41 

(iv)   Political  status  of  the  inhabitants 42 

(v)   The  existing  government    43 

(6)  The  rightful  authority  in  control  of  the  cession 44 

(&)   The  politics  and  policy  of  the  treaty 46 

(1)  President  Polk's  Mexican  policy 47 

(2)  The  ' ' all-of-Mexico ' '  movement 49 

Conclusion 51 

Appendices 53 

A.— Extracts  from  official  correspondence  with  regard  to  Mex 
ican  relations,  1845-1848 53 

B.  —  Synopsis  of  the  treaty 60 

C. — Extracts  from  the  diary  of  President  Polk 65 

D.— Map  of  the  territory  in  question 69 

List  of  authorities  cited 71 

NOTE. — The  numbers  in  brackets  at  foot  of  pages  are  the  folio 
numbers  for  the  UNIVERSITY  CHRONICLE,  Vol.  VII,  No.  4. 


CKTHE 

DIVERSITY 

OF 


THE    MAKING    OF  THE   TREATY   OF 

GUADALOUPE   HIDALGO    ON 

FEBRUABY  2,  1848.1 

JULIUS  KLEIN. 


History  has  been  defined  as  a  series  of  evolutionary  pro 
cesses, — not  a  mere  sequence  of  events,  or  a  procession  of 
happenings,  of  wars,  of  economic  upheavals,  and  of  exhibi 
tions  of  statecraft,  but  a  * '  series  of  processes, ' '  of  constantly 
changing  movements  out  of  which  arise  the  progress  and 
civilization  of  man.  The  examination,  therefore,  of  any 
particular  period  or  event  in  this  course  of  evolution  at  once 
raises  the  questions :  How  does  it  fit  in  with  the  great 
scheme  of  evolutionary  movement — does  it  advance  it  or 
retard  it  ?  What  is  the  effect  of  its  coming  upon  the  parti 
cular  form  of  this  movement  in  progress  at  the  time  the 
event  occurred? 

Applying  this  to  the  subject  at  hand,  our  investigation 
will  involve,  in  a  word,  the  determination  and  study  of  the 
general  tendency — or  evolutionary  process  as  we  first  called 
it — of  which  the  treaty  formed  an  element.  It  shall  be  our 
object  to  inquire  into  and  point  out  the  relationship  exist 
ing  between  this  vitally  important  document  and  the  trend 
of  the  powerful  undercurrent,  the  exact  nature  of  which 
is  to  be  determined. 


Historical  Prize  Essay,  1905. 

[247] 


In  looking  over  the  field  one  finds  the  writers  upon  the 
Mexican  War  quite  numerous;  but  the  majority  of  their 
works  are  contemporaneous  American  accounts — those  by 
Cutts,  Furber  and  Mansfield,  for  example — full  of  vivid 
battle  pictures  and  gross  exaggerations,  inspired  either  by 
a  patriotism  whose  ardor  was  exceeded  only  by  its  blind 
ness  to  sober  judgment,  or  by  a  profound — one  might  almost 
say  religious — zeal  in  holding  up  war  in  all  its  horrors  as 
an  argument  for  universal  peace  and  arbitration.1  And 
because  of  this  great  variety  of  views,  and  of  the  numberless 
opinions  from  more  or  less  authoritative  sources,  which 
have  from  time  to  time  found  expression  with  regard  to  the 
Mexican  War  and  the  Treaty  of  Guadaloupe  Hidalgo,  it  has 
been  deemed  necessary  to  base  this  investigation  in  part 
upon  the  more  conservative  statements  of  authorities  of  the 
present  day,  but  more  largely — we  might  say  almost  en 
tirely — upon  material  coming  from  sources  first-hand.  To 
this  end  the  Abridged  Debates,  the  Executive  Docu 
ments,2  and  the  Journals  and  Records  of  both  houses  of 
Congress  have  been  extensively  used.  In  connection  with 
these,  frequent  reference  will  be  found  to  official  or  semi 
official  correspondence  with  regard  to  Mexican  relations.3 
Of  primary  importance  as  sources  of  material  in  a  discus 
sion  of  this  nature  are  the  Reports  of  the  Supreme  Court 
of  the  United  States.  The  importance  and  respect  attached 
to  decisions  of  the  judiciary  have,  since  the  time  of  the 
Stuarts  and  before,  been  characteristic  of  Anglo-Saxon 
governments.  It  is  in  the  matters  of  constitutionality  and 
law  that  the  Reports  carry  their  greatest  weight  and  upon 
questions  involving  either  or  both  of  these  two  the  support 

1  E.g.   Jay,    Livermore,   and   Eipley,   the   last  of   whom   Bancroft 
considers  to  be  "the  most  important  of  American  authorities  upon 
the   War   apart   from   the   official    documents."      Cf.    Bancroft,    vol. 
V.,  p.  550. 

2  These   documents    of   course   include   the   Presidential   messages 
as  found  both  in  Kichardson's  "Messages'7  and  in  the  publications 
of  the  government. 

3  Cf-  Appendix  A. 


of  such  recognized  authority  is  deserving  of  the  most  pro 
found  consideration  and  attention.  There  is  still  another 
source  which  has  been  found  to  be  exceptionally  useful  in 
the  matter  of  furnishing  an  inner  light  upon  the  actual 
policy  and  methods  of  the  Administration  in  question; 
we  refer  to  the  diary  of  President  James  K.  Polk,1  which 
has  only  at  a  comparatively  recent  date  been  made  avail 
able  to  the  public ;  of  its  importance  and  exceptional  value 
as  a  source  in  this  discussion  more  will  be  said  at  the 
proper  occasion.2  It  will  be  noted  that  all  of  the  above, — 
Debates,  Documents,  Journals  and  Records,  Court  Reports, 
official  correspondence  and  the  diary — may  be  classed 
as  primary  sources  from  which  all  arguments  and  state 
ments,  in  order  to  have  sufficient  authority,  must  be  de 
duced,  and  beyond  which  there  is  no  appeal. 

Having  selected  our  authorities  it  is  important  to  con 
sider  next  the  method  by  which  the  material  gathered 
therefrom  is  to  be  handled.  Various  ways  at  once  suggest 
themselves.  We  might  take  the  treaty  as  a  whole,  com 
pare  it  minutely  with  instruments  of  a  similar  nature, 
showing  wherein  it  differs  from  and  is  similar  to  such 
treaties  as  that  of  1803  or  of  1819;  we  might,  in  a  word, 
treat  it  on  the  whole  as  an  example  of  diplomacy,  as  a 
purely  international  document,  viewing  it  only  in  its 
light  as  the  outcome  of  the  relations  existing  at  a  particular 
period  of  time  between  two  nations.  Again,  it  might  be 
regarded  as  the  climax  of  a  most  important  period  of 
American  history;  it  might  be  shown  to  what  extent  it 
actually  did  form  the  culminating  point  of  the  long  pend 
ing,  though  when  it  finally  came,  short  and  decisive 
struggle  between  the  two  governments  and  peoples.  In 
deed,  there  are  several  points  of  view  which  might  readily 
be  assumed  in  this  discussion;  but  in  order  to  make  the 
study  of  the  subject  thoroughly  complete  and  exhaustive  so 
that  the  entire  field  may  be  thus  covered  and  the  more 

1  Cf.  Appendix  C. 
2Vid.  post  (p.  290). 

[249] 


important  points  selected  for  especial  emphasis,  it  has 
been  thought  best  to  divide  the  work  into  two  general 
parts  and  examine  the  treaty  first  from  the  one  and  then 
from  the  other  standpoint.  Part  I  will  deal  with  the 
document  in  its  purely  historical  aspects;  in  it  we  shall 
attempt  to  show  the  steady  trend  of  events  and  sentiments 
that  made  the  war  and  the  treaty  which  closed  it  prac 
tically  inevitable;  in  this  part  will  also  be  included  an 
account  of  the  quite  extraordinary  conditions  under  which 
the  negotiations  were  completed  and  the  document  was 
signed.  In  Part  II,  on  the  other  hand,  we  shall  endeavor 
to  dissect  the  various  questions  not  so  much  with  regard 
to  their  historical  setting,  but  rather  in  their  political  and 
legal  aspect.  We  appreciate  the  fact  that  the  gradation 
from  historical  investigation,  pure  and  simple,  shades  off 
almost  imperceptibly  into  that  research  which  is  based 
on  the  law  and  politics  of  the  question;  but  arbitrary 
as  this  division  may  at  first  seem,  the  object  for  which  it 
has  been  made  and  the  distinction  which  has  been  drawn 
will,  it  is  hoped,  become  plainer  as  the  discussion  pro 
gresses. 

PAKT  I. 

"Had  it  not  rained  on  the  night  of  the  17th  of  June, 
1815,"  writes  Hugo,  "the  future  of  Europe  would  have 
been  changed."  Had  a  certain  train  left  the  City  of 
Mexico  on  the  4th  of  December,  1847,  the  future  of 
America  would  have  been  changed.  For  some  minor 
reason  of  apparently  no  significance  whatever,  the  special 
train  which  was  to  have  conveyed  Mr.  Nicholas  P.  Trist, 
sometime  Peace  Commissioner  of  the  United  States,  from 
the  Mexican  capital  to  Vera  Cruz  on  that  date,  was  de 
layed;  and  when  it  did  depart  some  six  days  later  Mr. 
Trist,  contrary  to  the  specific  instructions  of  his  letter  of 
recall  of  October  6,  1847,  did  not  accompany  it  for  reasons 
which  we  shall  later  investigate.  In  the  interval  follow 
ing,  negotiations  were  resumed  and  the  Treaty  of  February 
2,  1848,  was  the  result.  [250] 


In  order  that  our  conception  of  the  treaty  and  its 
setting  may  be  deep-rooted  and  fundamental,  a  brief  re 
view  of  the  relations  between  the  United  States  and  Mexico 
as  they  existed  before  the  breach  in  1845  and  1846,  has 
been  deemed  essential.  The  causes  which  have  been 
ascribed  to  the  war  are  numerous  and  varied.  It  shall 
be  our  aim,  however,  in  this  part  merely  to  give  the  events 
as  recorded  in  history;  the  discussion  of  the  policy  of 
the  President  and  his  administration,  and  his  interpre 
tation  of  those  events  have  been  reserved  for  later  con 
sideration. 

The  agitation  for  the  acquisition  of  California  and 
the  vast  stretch  of  territory  intervening  between  that 
province  and  Louisiana  was  begun  as  far  back  as  1835V 
In  that  year,  Secretary  of  State  Forsyth  proposed  the 
purchase  of  California  from  Mexico  but  without  favorable 
response  from  that  government.  Commodore  Jones  of 
the  United  States  Navy,  while  cruising  along  that  coast, 
received  the  report  that  Great  Britain  had  secured  the 
cession  of  California  from  Mexico,  and  he  forthwith 
landed  a  force  at  Monterey  and  declared  the  province 
annexed  to  the  United  States;  but  ascertaining,  upon  later 
investigation,  that  the  report  was  without  foundation,  he 
withdrew  and  sailed  away.  Congress  by  subsequent 
action  disavowed  his  act  and  the  affair  was  dropped.1  The 
revolt  of  Texas  from  Mexico  and  the  consequent  disrup 
tion  of  affairs  in  that  country  brought  on  a  renewal  of 
the  desire  for  the  proposed  acquisition.  Mr.  Butler,  the 
American  Minister  at  Mexico,  was  instructed  (August  16, 
1835)  to  negotiate  for  a  cession  of  all  Mexican  territory 
north  of  the  Rio  Grande  and  37°  North  Latitude;2  but 
this  attempt  also  resulted  in  nothing.  Previous  to  these 
efforts  on  the  part  of  the  government  to  secure  the  coveted 
prize,  a  number  of  fruitless  attempts  had  been  made  on 


1  House  Ex.  Doc.  No.  166,  2nd  Sess.  27th  Cong. 

2  House  Ex.  Doc.  No.  42,  1st  Sess.  25th  Cong. 

[2511 


the  part  of  various  private  individuals  to  advance  the 
slaveholding  interests  of  the  South  by  securing  practical 
possession  of  the  territory  in  question.  We  need  merely 
mention  such  attempts  as  that  of  forcible  seizure  in  June, 
1819,  or  that  of  colonization  in  1821.1  But  all  of  these, 
like  the  efforts  of  the  government,  were  of  no  avail.  The 
first  really  vigorous  attempt  which  we  find  the  govern 
ment  making  toward  this  end  occurred  when  Mr.  Slidell 
was  appointed  Special  Commissioner  to  Mexico  to  secure 
the  proposed  change  in  the  boundary.2 

The  recognition  and  acquisition  of  Texas  by  the  United 
States  are  happenings  which  need  not  concern  us  here; 
nor  do  the  events  which  followed — the  long  catalogue  of 
brilliant  victories  of  the  invading  forces  of  the  United 
States  under  Generals  Taylor  and  Scott — deserve  our 
attention  in  this  investigation.  From  the  north  and  east 
these  two  armies  had  pierced  the  vitals  of  the  country 
and  were  in  possession  of  practically  all  important  points. 
Sparsely  settled  New  Mexico  and  California  fell  as  easily 
won  prizes  to  such  leaders  as  Fremont,  Kearney,  and 
Sloat.  In  spite  of  the  hopelessness  of  the  struggle,  torn  as 
^it  was  by  constant  internal  disruptions,  the  bearing  of  the 
Mexican  government  in  its  relations  to  the  United  States 
was  marked  by  a  spirit  of  dignity  and  courage  quite  in 
contrast  to  the  attitude  assumed  by  the  northern  republic 
especially  toward  the  later  part  of  the  struggle.3  After 
the  capture  of  Vera  Cruz  by  Scott,  the  President  deter 
mined  to  send  a  diplomatic  representative  of  the  govern 
ment  to  accompany  the  army  on  its  march  to  the  capital 
to  be  ready  to  negotiate  the  terms  of  a  treaty  at  the  first 
available  opportunity.4  To  this  end  on  April  15,  1847, 

1  Cf.  Jay  op.  cit.  for  a  more  detailed  account  of  these  and  other 
similar  expeditions. 

2  House  Ex.   Doc.   No.   69,  pp.   33-34,   1st   Sess.   30th   Cong.     Cf. 
Appendix  A  (1),  pp.  297-298. 

'  3  Cf.  Foster  op.  cit.  p.  316. 

4  Sen.  Ex.  Doc.  No.  52,  pp.  81-85,  1st  Sess.  30th  Cong.    Cf.  Appen 
dix  A  (2),  p.  299. 

[252] 


he  commissioned  Mr.  Nicholas  P.  Trist,  Chief  Clerk  of 
the  Department  of  State,  "to  negotiate  and  conclude  a 
settlement  of  the  existing  differences  and  a  lasting  treaty 
of  peace"1  with  Mexico.  Trist  carried  a  projet  of  terms 
acceptable  to  the  administration  which  had  been  furnished 
him  by  Secretary  of  State  Buchanan.  Among  other  things, 
it  called  for  the  cession  of  the  disputed  strip  between  the 
Nueces  and  the  Rio  Grande  Rivers,  of  New  Mexico,  and 
both  Upper  and  Lower  California,  together  with  a  guar 
antee  of  a  right  of  way  across  the  Isthmus  of  Tehuantepec.2 
The  governing  body  in  the  country  at  the  time  of  his 
arrival — in  fact  the  only  federal  authority  then  existing  in 
Mexico — was  "the  sovereign  constituent  Congress"  then 
sitting  in  the  City  of  Mexico — a  body  "regularly  elected 
for  the  twofold  purpose  of,  first,  re-establishing  (with 
amendments)  the  constitution  of  1824"  that  had  been 
annulled  "by  military  violence  and  usurpation;  and 
secondly,  of  disposing  of  all  questions  connected  with  the 
war."3  From  August  27,  to  September  7,  1847,  during 
an  armistice  declared  for  that  purpose,  Trist  met  similarly 
empowered  representatives  of  Mexico  to  accomplish  the 
object  of  his  visit,  but  their  labors  were  of  no  avail.  In 
compliance  with  his  instructions,  he  demanded  the 
cession  of  Lower  California  and  the  other  provinces  as 
named  above.4  These  terms  were  immediately  rejected  by 
the  Mexican  commissioners,  who  refused  to  give  up  Lower 
California;  in  turn  they  submitted  a  counter-projet,5  in 
which  they  suggested  the  Nueces  as  a  boundary,  to  which 
Trist  would  scarcely  listen.  Following  these  mutual 
rejections,  negotiations  were  broken  off,  and  hostilities 
resumed.  But  already  the  government  set  up  by  the  "con- 

1  Sen.  Eep.  No.  261,  p.  4,  2d  Sess.  41st  Cong. 

2  Sen.  Ex.  Doc.  No.  20,  1st  Sess.  30th  Cong. 

3  Sen.  Eep.  No.  261,  p.  4,  2d  Sess.  41st  Cong. 

4  Art.  IV,  "Projet  submitted  by  Mr.  Trist"— Sen.  Ex.  Doc.  No. 
20,  p.  5,  1st  Sess.  30th  Cong. 

5  This  counter-projet  is   quoted  in   full  in   Kamsey's  translation, 
pp.  325-328.  Cf.  also  Sen.  Ex.  Doc.  No.  20,  pp.  9-12,  Is*  Sess.  30th 
Cong. 

[253] 


10 

stituent  Congress"  was  going  to  pieces.  "From  that 
event,"  says  Trist,1  referring  to  the  declaration  of  the 
armistice  just  alluded  to,  "dates  the  total  dissolution  of 
the  Mexican  government.  There  has  not  been  since  that 
moment  any  recognized  authority  in  existence  with  whom 
I  could  communicate."  The  marked  similarity  between 
the  condition  of  affairs  at  this  stage  of  the  war  and  that 
which  immediately  followed  the  Franco-Prussian  War,  is 
worthy  of  mention;  the  difficulty  lay,  not  so  much  in  the 
agreement  as  to  the  terms  of  a  settlement,  as  in  the  finding 
of  the  properly  constituted  and  stable  treaty-making  body 
of  the  defeated  country,  with  which  negotiations  might 
be  carried  on. 

Hearing  of  the  failure  of  his  efforts,  the  government 
at  Washington,  on  October  6,  1847,  ordered  Trist  to  desist 
from  further  negotiations  and  to  return  "by  the  first 
safe  opportunity"  to  the  United  States;2  the  commanding 
general  of  the  American  forces  was  thenceforth  to  look 
after  the  interests  of  the  country  in  the  matter  of  arrang 
ing  the  close  of  the  war.  Scott  was  instructed  by  Secre 
tary  of  War  Marcy  (October  6,  1847)  to  "embrace  the 
proper  occasion  to  notify  the  Mexican  authorities  of  the 
fact"  of  Trist 's  recall.  "By  both  parties  (i.e.,  the  Puros 
and  Moderados,  the  war  and  peace  party  respectively) 
the  peace  men  were  considered  floored;  this  (i.  e.  Trist 's 
recall)  was  considered  the  coup  de  grace  for  them."3 
Thenceforth  the  peace  party  need  expect  no  further 
encouragement  from  the  United  States;  the  war  would  be 
continued  until  the  resources  of  Mexico  were  entirely 
exhausted,  until  the  invading  armies  were  in  possession  of 
every  part  of  the  country,  when  the  name  of  Mexico  would 
vanish  from  the  list  of  nations.  This,  in  the  opinion  of 


1His  dispatch  of  Sept.  27,  1847,  to  See'y  Buchanan,  Sen.  Eep. 
No.  261,  p.  5,  2d  Sess.  41st  Cong. 

2Cf.  Appendix  A  (3),  p.  301. 

3  Trist 's  reply  to  Sec'y  Buchanan  acknowledging  the  receipt  of 
his  recall— Sen.  Eep.  No.  261,  p.  6,  2d  Sess.  41st  Cong. 

[254] 


11 

almost  all  who  heard  of  it,  would  be  the  effect  of  Trist's 
recall. 

The  "first  safe  opportunity"  that  presented  itself,  for 
Trist's  return  was  on  December  10,  1847.  A  special  train 
was  to  have  conveyed  him  from  the  capital  on  the  4th, 
but  it  was  delayed  until  the  10th ;  had  it  left  on  the  date 
originally  set,  his  return  would  have  begun  then,  and  any 
future  terms  which  the  President  might  have  granted  would 
have  depended  upon  the  later  events  of  the  war.1  But  the 
short  postponement  of  six  days  of  the  opportunity  for  his 
departure  resulted  in  the  exact  reversal  of  the  whole  table 
of  subsequent  events.  Years  later  Senator  Sumner,  in 
the  report  of  the  committee  appointed  by  the  Senate  to 
investigate  the  negotiations  in  question,  declared  this 
apparently  insignificant  incident  to  "constitute  an  event 
that  stands  alone  in  history  and  is  not  likely  ever  to  have 
a  parallel."1 

Since  his  arrival,  Trist  had  been  treated  by  Scott  as  an 
unwelcome  guest3  whose  presence  would  interfere  with 
military  operations;  the  decided  coolness  of  Scott's  recep 
tion  and  the  lack  of  interest  on  the  part  of  the  latter  in 
the  commissioner's  coming  in  contact  with  the  Mexican 
representatives  forced  Trist  to  resort  to  the  good  offices  of 
the  British  Legation  to  accomplish  his  purpose.  It  was 
during  the  interim  mentioned  in  the  previous  paragraph, 
that,  through  his  correspondence  with  Mr.  Edward  Thorn 
ton,  Secretary  of  the  Legation,4  and  led  on  to  no  small 
extent  by  his  own  patriotic  farsightedness,  he  determined 
to  "heed  the  spirit  of  his  instructions  without  standing 
upon  the  strict  letter."  Thus  Scott  by  his  very  treatment 
of  Trist  in  forcing  him  into  closer  relationship  with 
Thornton,  indirectly  caused  the  strengthening  of  the  de- 

1  Cf.  Appendix  C,  p.  309. 

2  Beport   of   the   Committee   on   Foreign   Eelations,   accompanying 
Sen.  Bill  Xo.  1068,  dated  July  14,  1870. 

3  Cf.  Foster,  op.  cit.  pp.  31G-et  seq. 

4  Cf.  Appendix  A  (5),  p.  302,  note. 

[255] 


12 


termination  of  the  former  to  disobey  his  recall,  strike  out 
boldly  upon  his  own  responsibility,  and  secure  a  treaty 
of  peace  conforming  as  closely  as  possible  to  his  original 
pro  jet.  It  was  upon  his  own  decision  that  "the  early 
cessation  of  the  war,  or  its  indefinite  protraction  de 
pended.  '  '* 

It  was  indeed  fortunate  for  both  belligerents  that  Trist 
made  himself  guilty  of  so  "  monstrous  an  insubordination, ' ' 
as  Von  Hoist  calls  it.2  This  great  authority  finds  difficulty 
however  in  attributing  a  well-defined  cause  to  the  com 
missioner's  action;  he  does  not  know,  he  says,  whether 
to  assign  it  to  "vanity  and  naive  audacity,  or  to  a  far- 
seeing  and  lofty  patriotism"  before  which  the  thought  of 
personal  welfare  was  lost  in  the  search  for  national  well- 
being.  But  there  does  not  seem  to  be  sufficient  ground  to 
justify  this  question  as  to  the  sense  which  prompted  him 
to  direct  disobedience  of  express  orders;  a  study  of  his 
correspondence  and  dispatches,  both  private  and  official,3 
will,  we  think,  bear  out  a  justification  for  Trist 's  action 
upon  purely  altruistic  grounds.  He  felt  that  the  ending 
or  protraction  of  the  war  rested  in  his  hands.  It  was  a 
question  of  either  assuming  a  personal  risk  and  thus 
accomplishing  the  actual  purpose  of  his  mission  by  secur 
ing  the  peace  which  was  desired,  or  of  clearing  himself  of 
all  possible  danger,  and  by  strict  obedience  to  what  we 
shall  afterwards  see  was  a  hasty  and  ill-judged  order  upon 
the  part  of  the  administration,  allow  the  war  to  continue, 
and  the  almost  certain  obliteration  of  Mexico  to  take  place. 
We  owe  it  to  the  keenness  of  his  insight  into  the  outcome 
of  his  action,  to  his  entire  disregard  of  his  own  security, 
and  to  his  firm  adherence  to  what  he  adjudged  to  be  the 
real  policy  and  welfare  of  his  government; — to  these  are 
we  indebted  for  the  subsequent  trend  of  events — for  the 

1  Cf.  Appendix  A  (4),  p.  301. 

2  Op.  cit.  Vol.  Ill,  p.  344. 

3  These   may   be    found   quoted   in   full   in   connection   with    Sen. 
Eep.   No.   261,  2d  Sess.  41st  Cong.;   also  in  Sen.  Ex.  Doc.  No.  52, 
1st  Sess.  30th  Cong.   See  also  Appendix  A  (4  and  5),  pp.  301-302. 

12561 


13 


avoidance  of  a  line  of  policy  the  outcome  of  which  would 
have  been  a  question  of^the  gravest  doubt.  "Strange  and 
unaccountable  for  its  pertinacity"1  as  his  behavior  may 
appear  to  some,  "a  circumstance  most  fortunate  to  the 
United  States"2  as  it  may  seem  to  others,  none  may  ques 
tion  the  gravity  with  which  its  outcome  was  fraught  and 
the  vitally  important  question  connected  with  it.  History 
records  few  events  of  a  similar  nature  that  had  so  much 
depending  upon  their  results — few  examples  of  such  fixity 
of  purpose  and  adherence  to  principle  in  the  face  of  such 
iron-bound  instructions. 

The  Mexican  government  was  by  this  time  indeed  in 
a  state  of  collapse.  It  was  a  case  of  "Now  or  never," 
as  Trist  says;3  if  the  already  wavering  peace  party  were 
not  to  receive  immediate  encouragement  by  his  continuing 
the  negotiations,  affairs  might  come  to  a  close  exactly  con 
trary  to  "the  earnest  wishes  of  both"  republics.  By  the 
Mexican  constitution4  the  presidency  if  vacant  was  filled 
temporarily  by  the  presiding  officer  of  the  Supreme  Court ; 
but  in  September,  1847,  the  latter  officer  had  died.  Con 
gress,  whose  duty  it  was  to  elect  a  successor  to  the  position, 
could  be  convened  only  by  the  proclamation  of  the  presi 
dent  ;  but  by  the  resignation  of  Santa  Anna  there  was  no 
one  acting  as  chief  executive,  and  affairs  had  thus  reached 
a  dead  level.  From  this  brief  sketch  some  idea  of  the 
chaotic  state  of  affairs  may  be  formed;  one  can  easily  ap 
preciate  the  delicate  adjustment  of  things — how  the  slight 
est  disturbance  on  the  part  of  the  war  party  would  have 
at  once  annihilated  the  last  vestige  of  a  Mexican  Govern 
ment  and  have  established  a  condition  of  anarchy.  It  was 
with  the  hope  of  preventing  this  that  the  leaders  of  the 
Moderados  (peace  party)  prevailed  upon  Pena  y  Peiia, 
the  able  statesman  then  senior  judge  of  the  Supreme  Court, 

1  Chase,  op.  cit.  p.  258. 

2  Von  Hoist,  Vol.  Ill,  p.  344. 
3Cf.  Appendix  A  (5),  p.  302. 

4  Cf.  Hall,  op.  cit.  §  II,  Art.  79. 

[257] 


14 


to  assume  the  office  of  provisional  president,  and  the  Con 
gress  could  thus  be  summoned  byjiis  proclamation.  Upon 
its  meeting,  it  immediately  proceeded  to  elect  a  president 
ad  interim  to  serve  until  January  8,  1848,  the  date  of  the 
regular  election.  In  both  these  elections  the  friends  of 
peace  narrowly  missed  defeat  through  a  combination  of 
Santa  Anna  and  the  war  party;  they  finally  triumphed, 
however,  and  at  the  opening  of  the  year,  an  administration 
decidedly  in  favor  of  closing  the  war,  headed  by  General 
Herrera,  was  installed.  A  report  was  made  in  the  Congress 
then  meeting  at  Queretaro,  regarding  the  condition  of  the 
army;  in  it  65,000  troops  were  declared  necessary  to  con 
tinue  the  war  with  any  prospect  of  success.  The  possi 
bility  of  raising  such  a  force  was  not  to  be  considered  for 
a  moment.  The  army  of  Mexico  was  in  utter  ruin  and  her 
privateer  commissions  and  certificates  of  citizenship  were 
drifting  about  the  market  without  purchasers  or  even  bid 
ders.  To  the  persistence  of  Trist  and  the  Moderados  is 
Mexico  indebted  for  the  preservation  of  her  national 
state — for  the  fact  of  her  existence  as  a  sovereign  govern 
ment  at  the  close  of  so  critical  a  period.  A  commission  was 
at  once  appointed  by  the  newly  installed  executive  to  confer 
with  the  American  representative  and  negotiate  for  a 
"treaty  of  peace,  friendships,  and  limits." 

Ever  since  his  coming  the  presence  of  Trist  was  all  that 
kept  the  cause  of  peace  alive;  upon  this  was  built  the  last 
remnant  of  a  government  in  the  crumbling  country.  At 
his  instigation,  acting  as  the  representative  of  the  United 
States,  and  on  the  strength  of  his  faithful  assurances  of  the 
sincerity  and  earnestness  of  his  government's  desire  for 
peace,  "what  was  universally  regarded  as  an  impossibil 
ity,  ' n  namely  the  building  up  of  at  least  the  semblance  of  a 
government  and  the  attainment  of  a  settlement  of  the  war, 
was  accomplished. 


1  Sen.  Eep.  No.  261,  p.  7,  2d  Sess.  41st  Cong. 
L2581 


15 

Shortly  after  that  bolt  out  of  the  clear  sky — his  recall  by 
the  authorities  at  Washington — he  made  known  his  line  of 
action  for  the  immediate  future.1  He  recognized  the  per 
fect  liberty  of  his  government  to  disavow  his  proceedings 
from  then  on,  should  it  see  fit  to  do  so.  This,  in  brief,  was 
his  plan :  With  the  consent  of  the  Mexican  government  he 
would  continue  the  work  of  agreeing  upon  a  treaty  with  the 
commission  with  whom  he  had  already  been  corresponding 
for  some  months.  It  was,  of  course,  to  be  distinctly  under 
stood  that  any  terms  or  agreements  which  he  might  make 
were,  so  far  as  his  own  government  was  concerned,  to  be 
considered  entirely  invalid,  and  were  to  have  no  binding 
force  upon  it.  Though  the  stamp  of  absolute  legality  be 
wanting  on  the  result  of  their  labors — should  they  agree 
upon  a  treaty — nevertheless  there  was  the  possibility  of  its 
securing  the  approbation  of  the  proper  authorities  at  Wash 
ington. 

Such  in  fact  was  the  actual  outcome  of  the  difficulty, 
and  success  thus  crowned  Trist's  efforts.  The  Mexican 
government  on  receiving  official  information2  through  Gen 
eral  Scott  of  Trist's  recall,  appreciated  the  true  state  of 
affairs — unlike  the  administration  in  power  in  the  United 
States,  as  we  shall  afterwards  see — and  accepted  these  pro 
posals  after  some  hesitation.3  It  has  been  said  that  the 
American  envoy  himself  chose  the  place  of  meeting,  the 
little  village  of  Guadaloupe  Hidalgo,  a  suburb  of  the  capi 
tal,  because  of  the  veneration  attached  to  it  by  the  people 


1  Dispatch  to  Sec  'y  Buchanan,  Dec.  6,  1847.     House  Ex.  Doc.  No. 
69,  1st  Sess.  30th  Cong. 

2  Cf.  Sec'y  Marcy's  letter  of  instructions  to  General  Butler,  Scott's 
successor,  Jan.  26,  1848.     Sen.  Ex.  Doc.  No.  52,  p.  146,  1st  Sess.  30th 
Cong. 

3  Scott  had,  by  this  time,  changed  his  attitude  toward  peace  (vid. 
ante  p.  255;  the  subsequent  action  of  the  Mexicans  was  largely  due 
to  his  encouragement,  in  the  course  of  which  he  gave  it  as  his  ' '  con 
fidential  belief  that  any  treaty  which  Mr.  Trist  might  sign  would  be 
duly  ratified  at  Washington. ' '    Scott,  Vol.  II,  pp.  576  et  seq. 

[259] 


16 

of  the  country.1  Their  meetings  were  numerous,  their  con 
ferences  long ;  but  after  six  weeks  of  almost  incessant  nego 
tiating,  during  which  Trist,  single  handed,  maintained  the 
principles  and  instructions  of  his  commission  with  excep 
tional  grace  and  skill,2  on  the  2d  of  February,  1848,  the 
Treaty  of  Guadaloupe  Hidalgo  was  signed — the  climax  to 
one  of  the  most  remarkable  periods  of  diplomacy  and  policy 
in  American  history. 

The  treaty  consisted  of  twenty-three  articles  and  an 
additional  and  secret  one  extending  the  time  for  the  ex 
change  of  ratifications.  Its  provisions  were  very  similar  to 
those  contained  in  Trist 's  original  projet  which  had  been 
rejected  by  the  Mexican  commissioners  in  August,  1847,  in 
accordance  with  Santa  Anna's  instructions.  At  the  time 
the  treaty  was  signed  the  Mexican  Congress  was  not  in  ses 
sion  ;  a  good  number  of  the  members,  however,  were  then  at 
Queretaro,  where  the  ratifications  were  subsequently  ex 
changed,  and  of  these  a  large  majority  strongly  approved  of 
the  action  taken,  in  spite  of  the  fact  that  the  American  ne 
gotiator  had  been  stripped  of  all  authority  by  his  govern 
ment.  General  Scott,  immediately  upon  the  completion  of 
Trist 's  labors,  instead  of  prosecuting  the  war  with  vigor, 
which  he  had  a  perfect  right  to  do,  and  which  was  almost  ex 
pected  of  him,  awaited  the  answer  to  his  report  of  February 
2,  in  which  he  had  enclosed  the  treaty. 

In  the  very  midst  of  its  discussions  on  various  methods 
of  increasing  the  army  and  prosecuting  the  war,  the  Ameri 
can  Congress  had  this  illegal  treaty — illegal  so  far  as  the 

1  In  his  dispatch  of  Feb.  2,   1848,  to  See  'y  Buchanan,  notifying 
him  of  the  signing  of  the  treaty,  Trist  says  it  was  signed  at  the  city 
of  Guadaloupe,  a  spot  which,  "  agreeably  to  the  creed  of  this  country, 
is  the  most  sacred  on  earth."     Cf.  Senate  Ex.  Doc.  No.  52,  p.  102, 
1st  Sess.  30th  Cong.;  also  Bancroft,  Vol.  V,  p.  540. 

2  The  Mexican  commissioners  declared,  in  their  final  report,  that 
"if  at  any  time  the  work  of  peace  is  consumated,  it  will  be  done  by 
negotiators    adorned   with    the    same    estimable    gifts    which    in    our 
judgment  distinguished  this  minister  (Trist)."     Translated  by  order 
of  the  Senate,  Sen.  Ex.  Doc.  No.  52,  p.  345,   1st  Sess.   30th  Cong. 
Cf.  also  Sen.  Kep.  No.  261,  p.  5,  2d  Sess.  41st  Cong. 

[260] 


17 


United  States  was  concerned — dropped  down  upon  it.  Al 
though  the  powers  of  the  American  envoy  as  such  had  been 
revoked  before  the  document  had  been  signed,  the  presi 
dent  very  properly  regarded  this  as  a  matter  resting  be 
tween  Mr.  Trist  and  his  government,  and  on  February  22, 
1848,  the  treaty  was  therefore  communicated  to  the  Senate, 
with  the  recommendation  that  it  be  ratified.1  Then  came 
three  long  and  anxious  weeks  of  debate  and  argument,  dur 
ing  which  period  the  treaty  hung  in  the  balance.  Many 
writers  on  the  subject  convey  the  impression  that  with  a 
few  unimportant  amendments  the  document  was  readily 
ratified  by  the  Senate.  Such,  however,  was  not  the  case. 
Even  before  it  had  been  laid  before  that  body  for  its  con 
sideration,  since  its  arrival  in  Washington  a  short  time 
before,  it  had  been  thought  of  only  as  the  entirely  unauthor 
ized  product  of  the  action  of  an  envoy  invested  with  no 
official  powers  whatever;  and  thus,  on  account  of  its 
illegal  origin,  how,  it  was  asked,  could  the  government  set 
its  approving  mark  upon  an  agreement  drawn  up  by  one 
who  was  totally  without  the  proper  authority  to  involve  that 
government  in  such  an  agreement?  When  the  treaty  was 
laid  before  the  Senate  the  same  line  of  opposition  was  con 
tinued.2  But  this  was  by  no  means  the  only  objection  ad 
vanced;  the  opponents  to  the  ratification  came  from  all 
sections  of  the  country  and  belonged  to  both  political 
parties,  and  therefore,  as  might  be  naturally  expected,  were 
moved  by  a  number  of  very  different  motives.  Some — a 
part  of  the  Whigs,  for  example — still  were  against  the  ac 
quisition  of  any  new  territory  whatsoever ;  they  argued  that 
so  vast  an  acquisition  with  its  "population  of  150,000 
hostile  people,  unwilling  to  be  united  to  us  and  unfit  to  be 
trusted  with  a  participation  in  our  free  forms  of  govern 
ment,"  would  be  a  mill-stone  upon  the  neck  of  the  nation 
and  would  inevitably  drag  the  country  down  to  utter 

1  Cf.  Appendix  C,  p.  311. 

2  Cf.  Sen.  Ex.  Doc.  No.  52,  1st  Sess.  30th  Cong,  for  a  detailed  ac 
count  of  the  struggle  for  ratification. 


18 


ruin — the  identical  argument  advanced  against  every  exten 
sion  of  our  boundaries  without  exception  from  1803  to  1898. 
Had  this  branch  of  the  opposition  succeeded  in  its  efforts 
to  strike  out  Article  V,1  the  treaty  would,  without  question, 
have  failed  of  endorsement  by  the  majority  required  for 
ratification.  Then  there  were  those  who  demanded  more 
territory  than  that  given  by  Trist  's  agreement ;  Mexico,  they 
said,  had  caused  us  sufficient  trouble  in  the  past  to  warrant 
our  making  a  far  greater  extension  of  our  boundaries  at 
her  expense ;  indeed  not  a  few  advocated  the  absorption  of 
the  whole  of  the  conquered  republic.  The  chief  objection, 
however,  was  raised  against  the  document  because  of  the 
lack  of  proper  authority  back  of  it.  Webster,  for  example, 
introduced  a  resolution  calling  for  the  postponement  of  any 
further  consideration  of  the  President's  message  of  Feb 
ruary  22,  1848,  (the  one  referring  the  treaty  to  the  Senate 
for  ratification),  and  "recommending  that  the  president 
nominate  commissioners  plenipotentiary,  not  fewer  than 
three,  to  proceed  to  Mexico  for  the  purpose  of  negotiating 
a  treaty  of  peace,  boundaries  and  indemnities  due  to 
American  citizens."2  The  adoption  of  such  a  resolution 
would,  of  course,  have  meant  the  ignoring  of  Trist 's  docu 
ment  altogether,  and  would  have  necessitated  the  risk  of 
perhaps  never  securing  the  appointment  of  a  corresponding 
commission  by  the  already  tottering  Mexican  government.3 
And  so  the  struggle  for  and  against  the  treaty  went  on — by 
no  means  the  mere  passive  formality  of  voting  upon  it,  as 
some  authors  would  have  us  believe.  It  was  here  in  the 
Senate  that  its  fate  was  to  be  decided,  and  the  strenuous 
efforts  put  forth  by  both  defense  and  opposition  shows  how 
well  aware  of  this  fact  that  body  was.  When  the  final  vote 
was  taken,  on  March  16,  1848,  and  the  ratification  of  the 
treaty  by  the  Senate  was  completed,  the  shifting  of  but 

1  Cf.  Appendix  B,  pp.  304-305. 

2  Sen.  Ex.  Doc.  No.  52,  p.  4,  1st  Sess.  30th  Cong. 

3  Senator  Houston's  resolutions  of  Feb.  28,  1848,  as  well  as  those 
of  various  other  Senators  are  of  th&same  substance  as  Webster's. 


19 


three  votes  from  one  side  to  the  other  would  have  changed 
the  result,1  there  being  38  yeas  and  14  nays.2 

Why,  it  might  be  asked,  did  the  Senate  in  the  face  of 
such  many-sided,  vigorous  opposition  on  the  part  of  so 
many  of  its  members,  endorse  the  result  of  Trist's  negotia 
tions  ?    It  was  simply  and  solely  the  accomplishment  of  that 
mightiest  of  powers  in  the  affairs  of  the  United  States — 
public  opinion;  the  people  wanted  peace,  and  it  was  the 
unanimity  of  this  desire  that  forced  the  Senate  to  accept 
the  earliest  opportunity  that  presented  itself  to  conclude 
the  war.    This  grinding  of  the  heel  of  oppression  upon  an 
already  beaten  antagonist  was  becoming  distasteful  to  the 
body  of  American  citizens ;  the  war  must  stop ;  ' '  the  tide 
of  public  opinion,"  said  Calhoun,3  "is  running  with  irre 
sistible  force  against  it. "    "  The  press  on  all  sides  through 
out  the  country  united  for  once"*  in  the  common  cause  for 
peace :   an  already  potent  popular  demand  for  the  cessa 
tion  of  hostilities  steadily  grew  in  strength  and  volume 
as    it    rolled    on.     Before    these    forces     (powers,    they 
might  well  be  called)  the  Senate  could  not,  dared  not  stand. 
Having    been    ratified    by    the    proper    treaty-making 
authority  in  the  United  States,  the  document  was  sent  to 
the  Mexican  Congress  for  endorsement.    There  again  it  had 
to  face  an  opposition  almost  the  entire  substance  of  whose 
argument  was  the  lack  of  properly  sanctioned  authority 
back  of  the  very  negotiations  upon  which  the  treaty  was 
built.    It  was  confirmed,  however,  as  the  only  resort  open 
to  the  country,    almost  dismembered  as  it  was  by  internal 
disruptions,  and  shattered  by  the  irresistible  blows  of  an  ex 
ternal  foe.     On  the  30th  of  May,  of  the  same  year,  the 
necessary  ratifications  were  exchanged  at  Queretaro  by  the 
American  government  through  Messrs.  Sevier  and  Clifford, 
and  by  Senor  Rosa,  Minister  of  Foreign  Relations,  on  the 

1  Webster's  Works,  Vol.  II,  pp.  266-7. 

2  Sen.  Ex.  Doc.  Xo.  52,  p.  36,  1st  Sess.  30th  Cong. 
8  Works'  Vol.  IV,  p.  442. 

4  Webster's  Works,  Vol.  V,  p.  266. 

[263] 


20 


part  of  Mexico.  Thus  was  the  treaty  of  Guadaloupe  Hi 
dalgo  entered  upon  the  pages  of  history  as  an  actuality, — a 
document  demanded  by  the  force  of  public  opinion  in  the 
northern  republic,  imperative  to  the  very  existence  of  the 
southern  state ;  questionable  as  was  the  legality  of  its  origin, 
it  wrought  sweeping  changes  in  North  American  geography 
and  made  subsequent  history  far  different  from  what  it 
would  probably  have  been. 

It  might  be  well  to  insert  here  the  ' '  strange  sequel  to  the 
negotiations."  Such  wilful  disobedience  on  Trist's  part 
roused  the  executive  to  severe  measures;  there  being  no 
favorable  response  to  the  letter  of  recall  of  October  6,  1847, 
an  order  for  his  arrest  and  forcible  return  to  Washington 
was  given  the  military  authorities  then  in  Mexico.  But  by 
the  time  this  communication  arrived,  the  treaty  had  al 
ready  been  signed  and  the  object  of  his  mission  accom 
plished  ;  the  order  was,  therefore,  not  executed  and  Trist  re 
turned  to  the  United  States  of  his  own  free  will,  April  8, 
1848.  Here  he  found  an  embarrassing  and  unfortunate 
state  of  affairs  awaiting  him.  Since  the  date  of  his  recall 
his  name  had  been  stricken  from  the  roles  of  the  State 
Department — his  pay  had  been  stopped  before  his  work  had 
fairly  begun  and  he  had  been  dismissed  in  disgrace  from 
the  service.  It  was  not  until  twenty-two  years  afterward 
that  the  government  saw  fit  to  correct  this  offense  against 
the  dictates  of  fairness  and  good  judgment.  The  negotia 
tions  described  above,  particularly  the  part  which  Trist 
played  in  them,  were  made  the  subject  of  a  special  investi 
gation  and  report  by  the  Senate  Committee  on  Foreign 
Kelations,  of  which  Mr.  Sumner  was  chairman.1  It  was 
left  for  the  Congress  of  another  generation  to  appreciate 
the  true  value  to  his  country  of  the  services  of  the  unjustly 
disgraced  envoy,  and  to  some  extent,  at  least,  to  make 
recompense  for  the  bad  policy  and  the  lack  of  fair-minded 
ness  of  its  predecessor.  On  the  20th  of  April,  1871,  an 


1  Sen.  Rep.  No.  261,  2d  Sess.  41st  Cong. 

[264] 


21 


appropriation  was  made  in  favor  of  Mr.  Trist  of  $14,5 60.1 
Thus  closed  what  might  well  be  called  a  shaded  period 
in  American  history.  "The  United  States  was  in  the 
wrong ;  all  the  world  knows  it,  all  honest  American  citizens 
acknowledge  it."2  And  yet,  though  it  was  a  war  forced 
into  being  by  the  one  without  the  substantial  basis  of  a 
just  provocation,  and  accepted  by  the  other,  weak  and 
divided  as  it  knew  itself  to  be,  with  an  unaccountable  lack 
of  foresight  and  consideration  of  results,  nevertheless  it 
must  be  admitted  that  the  outcome  of  the  struggle  as 
embodied  in  the  treaty,  was  one  which,  sooner  or  later,  by 
one  way  or  another,  because  of  the  very  characteristics  of 
the  two  peoples  and  the  nature  of  their  relations,  was 
bound  to  come  about.  In  other  words,  given  a  strong, 
energetic  nation,  full  of  life  and  activity,  place  that  nation 
beside  a  people  of  different  blood,  possessed  of  no  virility, 
listless  and  unprogressive  in  the  very  things  which  their 
environment  should  encourage — in  such  a  situation  there 
can  be  but  one  outcome.  "It  is  all  but  impossible  for  a 
feeble  state,  full  of  natural  wealth  which  her  people  do  not , 
use,  not  to  crumble  under  the  impact  of  a  stronger  and 
more  enterprising  race.":  The  document  under  discussion 
was  but  the  natural,  the  inevitable  result  of  the  situation 
and  condition  of  affairs.  Had  the  Mexican  war  never  come 
about,  and  had  the  treaty  which  closed  it  never  been  drawn 
up,  if  the  teachings  of  history  from  its  very  beginnings  war 
rant  the  making  of  any  prophecy  whatever,  we  have  every 
right  to  believe  that  there  would  have  been  another  treaty, 
at  another  time  but  that  its  substance  would  have  been, 
upon  all  the  more  important  points  at  least,  practically 
identical  with  this  one.  Then  the  title  of  this  discourse 
would  not  have  been  what  it  is,  but  a  change  in  name  and 
other  minor  details  would  suffice  to  make  it  suit  this  later, 
imaginary  document.  The  Treaty  of  Guadaloupe  Hidalgo 

1 17  Stat.  at  Large,  643. 

2  Bancroft,  Vol.  V,  p.  543. 

3  Bryce,  op.  cit.  Vol.  II,  p.  413. 

[265] 


22 


of  February  2,  1848,  was  a  thing  prescribed  to  history, 
which  sooner  or  later  it  must  record;  such  might  not  have 
been  its  name,  such  might  not  have  been  its  date,  but  in  the 

V ultimate,  its  substance  and  effect  must  come  into  being, 
it  made  no  difference  when  or  where  or  under  what  cir 
cumstances  ;  there  was  no  alternative. 

PAET  II. 

When  one  mentions  the  Treaty  of  Guadaloupe  Hidalgo, 
the  first  thought  that  naturally  arises  is  of  the  radical 
change  in  the  boundary  which  it  effected;  the  common 
conception  of  the  treaty,  indeed,  is  that  it  was  the  means 
of  vast  territorial  expansion  on  the  part  of  the  United 
States.  "The  masses  think  in  events,  not  syllogisms." 
The  single  events  of  the  acquisition  of  California  and  New 
Mexico — meaning  of  course  the  Mexican  provinces  of  those 
names1 — is  the  distinguishing  feature  of  this  document  in 
the  minds  of  most  of  those  who  have  occasion  to  think  of 
it.  In  Part  I  our  attention  has  been  confined  to  a  pure 
and  simple  historical  narrative  of  the  events  leading  up 
to  and  concerning  the  making  of  the  treaty:  the  early 
relations  between  the  two  countries  have  been  briefly 
indicated ;  the  beginnings  and  steady  growth  of  the  desire 
to  acquire  the  coveted  territory  up  to  the  fulfilment  of 
this  longing  by  the  treaty;  a  sketch  of  the  negotiations 
and  of  the  peculiar  circumstances  under  which  the  docu 
ment  was  signed;  an  account  of  the  opposition  to  it  and 
its  final  ratification;  and  lastly,  a  statement  of  the  im 
portance  of  the  subject  under  discussion,  of  its  position  in 
the  history  of  America — all  these  topics  have  been  dealt 
with,  more  or  less  in  detail,  thus  far.  It  will  be  our  en 
deavor,  in  this  part,  to  discuss,  not  the  historical  events 
of  the  period  in  and  of  themselves,  but  rather  the  political 
aspect  of  the  question,  the  points  of  law — both  international 
and  municipal — which  must  of  necessity  demand  considera- 


1  Cf.  Map,  Appendix  D,  p.  313. 

F266] 


23 


tion  in  any  thorough  investigation  of  this  character,  and 
to  inquire  into  the  policy  and  plan  of  action  which  lay 
back  of  the  whole  series  of  events  of  this  period  of  which 
the  treaty  was  the  climax.  The  policy,  the  politics,  and  the 
law  of  the  treaty,  will,  in  other  words,  concern  us  in  this 
part,  as  contrasted  with  the  history  of  it,  pure  and  simple, 
as  given  in  Part  I.  We  are  aware  that  this  distinction 
seems  quite  arbitrary,  that  "history  is  past  politics;"  but 
taking  the  mere  chronicle  of  events  as  given  in  Part  I,  we 
think  the  contrast  which  has  been  drawn  here  between  it 
and  the  examination  of  the  motives,  political  theories,  and 
judicial  opinions  concerning  the  document,  which  is  to 
follow,  is  based  upon  sufficient  ground  to  warrant  its  being 
made. 

The  first  phase  of  the  discussion  which  we  shall  take 
up  will  be  that  concerning  the  law  of  the  treaty,  based 
largely  upon  the  decisions  of  the  Supreme  Court.  In  the 
examination  of  this,  the  legal  aspect  of  the  question,  it 
has  been  thought  best  to  systematize  and  arrange  the 
method  of  procedure  by  dividing  the  field  into  the  fol 
lowing  distinctly  separate  parts:  First,  the  legality  of 
the  treaty — a  review  of  its  articles  and  a  brief  inquiry 
into  their  nature ;  second,  those  questions  of  international 
law  involved — a  phase  of  the  subject  which  any  thorough 
consideration  of  the  treaty  cannot  omit;  third,  the  effect 
of  the  document  upon  the  extension  of  the  boundaries  of 
the  United  States  when  viewed  from  a  purely  technical, 
legal  standpoint:  fourth,  the  relationship  of  the  constitu 
tion  and  the  acquisition  of  the  new  territory,  as  affected  by 
the  treaty;  fifth,  the  effect  it  had  upon  the  status,  the 
government  and  the  law  of  the  new  possessions ;  and  sixth, 
and  last,  the  true  legal  authority  in  control  of  California 
and  the  rest  of  the  cession. 

The  first  aspect,  then,  in  which  we  shall  inquire  into 
the  law  of  the  treaty  as  it  has  been  called  above,  is  in 
regard  to  the  context  and  legality  of  the  document  itself, 
keeping  constantly  in  mind  that  the  examination  is  to  be 

[2671 


24 


one  from  a  purely  legal  standpoint.  It  is  not  intended 
at  this  particular  point,  to  examine  each  article  of  the 
document  in  detail,  for  each  of  the  more  important  ones 
will  be  taken  up  under  the  various  topics  to  which  they 
belong;  a  short  summary  of  some  parts  of  the  treaty  has, 
however,  been  deemed  necessary  in  order  that  we  may 
have  a  good  foundation  upon  which  to  build  our  later 
examination  of  the  legal  characteristics  of  the  document 
as  a  whole. 

There  are  many  possible  arrangements  of  all  the  dif 
ferent  articles;  a  very  convenient  one,  for  example,  would 
be  the  separation  of  those  that  were  temporary  in  their 
effects,  from  those  that  are  permanent;  but  for  present 
purposes  a  brief  review  of  the  various  parts  in  their  order 
has  been  thought  essential.1 

Article  I  declares  a  "firm  and  universal  peace"  be 
tween  the  two  republics.  Although  this  is  "one  of  the 
usual  formalities"  common  to  all  treaties  of  peace,  this 
declaration  nevertheless  has  its  significance  which  some — 
not  many — writers  have  carefully  pointed  out.2  This 
treaty  effected  an  ending  to  the  Mexican  war;  by  this 
stipulation,  calling  for  a  universal  peace  and  implying  a 
perpetual  one,  it  is  not  meant  that  there  shall  never  again 
be  war  between  the  two  republics;  the  terms  used  apply 
only  to  the  particular  war  terminated  by  this  document; 
and  as  far  as  this  struggle  was  concerned,  the  peace  was 
universal  and  perpetual — hostilities  could  not  be  renewed 
for  the  same  cause ;  but  over  any  future  cause  for  a  breach 
between  the  two  republics,  this  article  had  no  control 
whatsoever. 

In  Articles  II,  III  and  IV,  are  found  purely  temporary 
provisions  regarding  the  handing  over  of  the  parts  of  the 
conquered  territory  to  Mexico.  We  shall  have  occasion  to 

1  Copies  of  the  treaty  in  full  are  available  in  a  number  of  works 
— 9  U.  S.  Statutes,  922;  Kipley,  Vol.  II,  pp.  581-585;  Snow,  pp.  185- 
192;  Sen.  Ex.  Doc.  No.  47,  p.  681,  2d  Sess.  48th  Cong. 

2  E.g.  Wheaton,  op.  cit.  §  3,  p.  610. 

[268] 


25 


refer  to  Article  III  at  a  later  stage  of  the  discussion  in 
dealing  with  another  phase  of  the  legal  side  of  the  treaty. 

In  Article  V  we  come  to  what,  without  question,  has 
been  rightly  regarded  as  the  most  important  part  of  the 
document.  About  this  all  the  rest  is  hung — this  embodied 
the  object  of  the  war,  all  the  rest  is  accessory  to  it.  There 
is  no  need  of  an  explanation;  it  merely  defines  and  fixes 
the  boundary  between  the  two  countries  as  it  is  today, 
except  for  the  subsequent  addition  of  the  so-called  Gadsden 
Purchase  in  1853.1 

Articles  VI  and  VII  are  of  no  especial  importance  and 
are  self-explanatory.2 

Articles  VIII  and  IX,  particularly  the  latter,  merit 
considerable  attention  in  that  similar  articles  are  found  in 
every  treaty  of  cession  which  the  United  States  has  entered 
into  in  its  history,  and  a  comparison  is  for  that  reason 
essential  to  a  good  understanding  of  the  document. 
Article  VIII  is  merely  supplementary  to  the  one  after  it 
and  is  therefore  considered  along  with  it.  As  originally 
drawn  up  by  Trist  Article  IX  provided  for  the  incorpora 
tion  of  such  Mexican  inhabitants  as  remained  in  the  ceded 
territory  with  the  intention  of  becoming  citizens,  and 
their  admission  into  the  Union,  "as  soon  as  possible 
according  to  the  principles  of  the  Federal  Constitution,  to 
the  enjoyment  of  all  the  rights  of  citizens. '  '3  This  proved 
unsatisfactory  to  the  Senate;  they  did  not  wish  to  have  it 
implied  that  the  "principles  of  the  Federal  Constitution'7 
demanded  or  provided  for  the  admission  of  newly  made 
citizens  ' '  as  soon  as  possible ; "  on  the  contrary,  as  amended 
by  that  body,  this  article  gives  Congress,  not  the  Con 
stitution,  the  power  to  exercise  its  discretion  in  admitting 
them,  at  the  time  which  shall  be  judged  of  by  it  as  proper. 
As  amended  this  part  of  the  treaty  is  in  substance  the 
same  as  the  provision  regarding  citizenship  in  the  cession 

1  Cf.  Map,  Appendix  D,  p.  313 ;  also  Appendix  B,  pp.  304-305. 

2  Cf.  Appendix  B,  p.  305. 

3  Cf.  Appendix  B,  p.  305. 

[2691 


26 


of  1803,  and  in  all  those  of  subsequent  date;  it  is  in  con 
formity  especially  with  the  more  modern  ideas  on  the  sub 
ject.  We  shall  have  occasion  to  refer  to  this  subject  of 
citizenship  later,  when  dealing  with  the  question  of  the 
legal  status  of  the  territory  acquired  and  its  inhabitants. 
When  the  President  sent  the  treaty  to  the  Senate  for 
ratification  he  did  so  with  the  recommendation  "to  strike 
out  the  tenth  article;"  this  leads  naturally  to  an  inquiry 
into  its  contents,  and  we  find  it  indeed  quite  "unaccount 
able  how  it  should  have  found  a  place  in  the  treaty."1  It 
is,  to  say  the  least,  strange  that  such  a  stipulation  should 
have  appeared  in  the  document.  Trist  was  given  no 
instructions  whatever  on  this  point;  his  projet  specified 
nothing  with  regard  to  it  ;2  we  have  been  unable  to  find  any 
reason  for  his  inserting  it,  either  in  his  personal  or  official 
correspondence.  Suffice  to  say,  the  article  appeared  in  the 
paper  signed  at  Guadaloupe  Hidalgo,  February  2,  1848; 
but  was  stricken  out,  along  with  a  few  other  less  important 
clauses,  by  the  President  and  the  Senate.  Had  it  been 
allowed  to  remain  it  would  have  meant  the  resuscitation 
of  any  number  of  grants  of  lands  in  the  ceded  territory 
which  had  become  mere  nullities,  in  that  it  would  have 
given  grantees  the  same  period  of  time  after  the  exchange 
of  ratifications  to  perform  the  conditions  on  which  the 
grants  were  made,  as  they  had  been  originally  entitled  to. 
It  would  indeed  have  proved  to  be  a  most  fruitful  source 
for  otherwise  unnecessary  litigation;  but  the  courts  would 
have  been  compelled,  on  the  very  face  of  it,  to  disregard 
it  as  a  violation  of  one  of  the  most  sacred  of  American 
privileges — the  right  to  hold  property  justly  acquired. 
Here  would  have  been  a  case  where  a  treaty  as  the 
"supreme  law  of  the  land"  would  have  worked  a  most 
appreciable  stroke  of  injustice.  Had  the  Mexican  govern- 


1C/!.  Appendix  A  (6),  p.  303. 

2  Cf.  Message  of  the  President  to  the  Senate,  Feb.  23,  1848,  Sen. 
Ex.  Doc.  52,  1st  Sess.  30th  Cong.;  also  his  message  to  the  House, 
Feb.  8,  1848,  Benson's  Debates,  Vol.  XVI,  p.  303. 


27 


ment  insisted  upon  the  retention  of  this  article,  we  learn 
from  the  instructions  to  the  American  commissioners  sent 
to  exchange  ratifications  that  "all  prospect  of  immediate 
peace  is  ended  and  you  may  give  them  an  absolute  assur 
ance."  Fortunately  this  was  not  found  necessary  and  the 
treaty  was  ratified  without  this  stipulation  regarding  land 
grants. 

Article  XI  need  not  concern  us;  it  was  merely  a  tem 
porary  provision  and  was  entirely  abrogated  shortly  after.1 

The  payment  of  fifteen  millions  of  dollars  by  the  United 
States  is  arranged  for  in  Article  XII.  During  August  of 
1846  three  millions  of  dollars  were  appropriated  "to  enable 
the  President  to  conclude  a  treaty  of  peace,  limits,  and 
boundaries,  with  the  Kepublic  of  Mexico,  to  be  used  by  him 
in  event  that  the  said  treaty  when  signed  *  *  *  and 
ratified  *  *  *  shall  call  for  the  same  or  any  part 
thereof. '  '2  And  so,  when  the  present  document  was  signed, 
there  was  need  of  an  appropriation  of  but  twelve  millions, 
as  a  part  of  the  sum  called  for  in  Article  XII  was  already 
in  the  hands  of  the  executive.  Some  writers3  looked  upon 
this  placing  of  three  millions  of  dollars  in  the  hands  of  the 
executive  almost  without  restriction  as  a  preposterous 
offense  against  the  democratic  nature  of  our  government — 
this  "vesting  the  President  with  the  powers  of  a  despot." 
They  did  not  realize  the  necessity  of  an  unhampered,  prop 
erly  timed  action  on  the  part  of  one  officer.  The  whole 
of  the  operations  against  the  late  insurrection  in  the  Philip 
pines  was  conducted  by  the  President;  Congress  in  its 
official  capacity  knew  nothing  whatever  of  the  trouble.  So 
too,  this  entrusting  the  executive  with  three  millions  was 
merely  the  outcome  of  a  need  enforced  by  the  condition 

1  Cf.  Appendix  B,  p.  307. 

2  Sen.  Ex.  Doc.  No.  107,  p.  5,  2d  Sess.  29th  Cong. 

3  E.g.  Jay,  op.  cit.  pp.   183  et  seq.;  speech  by  Senator  Corwin, 
quoted  in  Hart's  "History  by  Contemporaries,"  p.  24;   also  a  few 
other  contemporaneous  authors. 

[271] 


of  things  at  the  time  and  entirely  in  accord  with  law  and 
equity.1 

All  Articles  from  XIII  to  XX  inclusive,  excepting  XIII 
which  will  be  discussed  directly,  are  unimportant  in  this 
discussion  and  will  not  concern  us  here.2 

The  claims  of  American  citizens  against  Mexico,  which 
were  finally  settled  by  Article  XIII,  had  served  as  long 
standing  sources  of  trouble  between  the  two  republics. 
Far  back  in  Jackson's  administration  there  was  a  strong 
effort  made  on  the  part  of  the  State  Department  to  stir 
up  trouble  over  certain  trivial  matters  of  this  kind;  but 
try  as  it  might,  the  department  could  muster  but  eighteen 
claims  and  of  these,  it  confessed  it  was  "not  in  possession 
of  positive  proof."3  From  that  time  down  to  the  Treaty 
of  1848  constant  reference  was  made  to  the  inumerable 
"outrages  upon  the  property  and  persons  of  American 
citizens,"  but  by  Article  XIII  of  the  present  treaty  they 
are  set  aside  once  and  for  all.  Regarding  the  right 
of  the  government  to  do  this  there  can  be  no  doubt.  The 
Supreme  Court  as  early  as  1796  held  that  the  treaty-making 
power  of  the  United  States  could  control  and  dispose  of 
the  claims  of  citizens  in  any  manner  it  thought  "necessary 
to  preserve  the  peace  and  welfare  of  the  country."4 

The  remaining  parts  of  the  treaty  may  be  disposed  of 
with  a  few  words.  Article  XXI  while  apparently  guar 
anteeing  arbitration  as  a  means  of  settling  any  future 
trouble,  in  reality  does  nothing  of  the  sort,  for  the  provision 
is  made  that  there  be  peaceful  settlement  of  all  differences 
unless  one  of  the  parties  deems  such  a  means  of  adjusting 
the  difficulty  "altogether  incompatible  with  the  nature  of 


1  Cf.  Elrnes,  op.  cit.  §  632,  for  a  legal  statement  of  this  question; 
Eev.  Stats.  §  291;  Bandolph,  op.  cit.  p.  23;  Wilson,  op.  cit.  Vol.  IV, 
pp.  122-123. 

2  Cf.  Appendix  B,  pp.  307-308. 

3  House  Ex.  Doc.  No.  105,  p.  26,  2d  Session.  24th  Cong. 

4  Ware  vs.  Hylton,   3  Dallas,   199;    cf.  also  Butler,  op.  cit.  Vol. 
II,  p.  285. 

12721 


29 


the  difference,"1  which  leaves  things  practically  as  they 
were  before. 

The  rest  of  the  treaty— Articles  XXII  and  XXIII,  as 
well  as  the  "additional  and  secret  article"  which  was  later 
stricken  out  by  the  Senate — are  self-explanatory  and  need 
no  comment.2 

We  come  now  to  the  question  as  to  the  legality  of  the 
treaty  itself,  taken  as  a  whole.  This  need  not  concern  us 
long;  indeed,  were  it  not  for  the  fact  that  at  the  time  of 
the  discussion  of  the  document  in  the  Senate  much  of  the 
argument  of  the  opposition  was  based  upon  the  alleged 
illegality  of  the  agreement  because  of  Trist's  behavior 
after  being  recalled,  we  should  be  tempted  to  forego  any 
discussion  of  this  point.  As  far  back  as  1806  a  statute 
was  passed  forbidding  any  negotiations  by  anyone  except 
the  duly  accredited  appointees  of  the  President.3  Polk, 
however,  very  properly  looked  upon  Trist's  obedience  or 
disobedience  as  a  matter  resting  solely  between  the  latter 
and  his  government.  Though  all  of  his  acts  after  the  date 
of  his  recall  could  be  avowed  or  not  by  the  authorities  at 
Washington,  yet  "Mexico  was  not  capable  of  taking  such 
exception."4  She  had  full  and  official  knowledge  of  the 
American  envoy's  recall,  and  since,  acting  under  this 
knowledge,  her  representatives  had  negotiated  a  treaty 
with  him,  it  rested  only  with  the  United  States  whether 
or  not  the  result  of  Trist's  procedure  should  stand.  On 
February  22,  1848,  the  President  submitted  the  docu 
ment  to  the  Senate  with  the  recommendation  that  it  be 
ratified.  By  the  executive  action  so  taken  the  invalidity 
in  which  it  had  originated  was  cured,  and  it  became  trans 
muted  into  a  genuine  treaty,  "so  far  as  the  President's 
sole  authority  was  competent  to  impart  this  character  to 

1  Cf.  Appendix  B,  p.  309. 
-Ibid.  pp.  308-309. 

3Cf.  Hart,  "Actual  Government/'  p.  441. 

4  Folk's  message  of  Feb.  29,  1848,  Sen.  Ex.  Doc.  No.  60,  1st 
Sess.  30th  Cong. 

[273] 


30 


it/'1  Trist  was  an  appointee  of  the  President,  equipped 
by  order  of  the  latter  with  an  outline  of  terms  acceptable 
to  the  administration;  his  recall  came  through  the  execu 
tive  ;  in  a  word,  being  a  representative  of  that  department 
of  the  government,  he  was  responsible  to  it  alone ;  therefore 
any  breach  of  orders  on  his  part  was  something  resting  only 
between  his  principal  and  himself.  For  that  reason,  we 
may  say  that  by  submitting  the  treaty  to  the  Senate  and 
recommending  its  ratification,  the  President  destroyed  the 
effects  which  its  unauthorized  origin  may  have  had.  Re 
garding  the  powers  of  the  Mexican  commissioners,  there 
can  be  no  doubt  as  to  their  authority  to  sign  any  agree 
ment  they  saw  fit.  They  derived  their  full  powers  on 
the  30th  of  December,  1847,  from  the  President  ad  interim 
(General  Anaya)  " constitutionally  elected  to  that  office 
by  the  sovereign  constituent  Congress."  We  thus  have 
the  treaty  upon  an  indisputably  legal  basis,  binding  upon 
both  parties. 

We  come  now  to  the  second  phase  of  the  examination 
of  the  document  from  a  legal  standpoint,  namely,  a  sum 
mary  of  the  general  questions  of  international  law  involved 
in  an  acquisition  of  territory  such  as  this  treaty  set  forth. 
In  a  discussion  of  this  kind  it  is  of  course  natural  to  expect 
any  number  of  questions  of  international  jurisprudence 
to  come  up,  and  in  fact  many  do  arise ;  but  it  is  merely 
those  few  which  are  especially  concerned  in  the  subject 
before  us  that  deserve  attention.  The  power  to  acquire  ter 
ritory  in  general,  and  the  exercise  of  that  power  by  the 
United  States  in  particular;  the  agents  through  whom  the 
negotiations  may  be  carried  on;  and,  lastly,  the  question 
whether  or  not  the  treaty  should  have  specified  for  the  ask 
ing  of  the  consent  of  the  inhabitants  of  the  ceded  territory ; 
these  are  the  points  to  be  looked  over  in  this  connection. 

First,  as  regards  the  power  to  acquire  territory,  but 
particularly  the  assertion  of  that  power  by  the  United 


1  Sen.  Eep.  No.  261,  2d  Sess.  41st  Cong. 

12741 


31 


States,  which  is  so  manifest  in  this  treaty.  The  right  to 
cede  and  acquire  territory  is  one  of  the  most  elementary 
privileges  of  a  sovereign  state.1  A  government  not  fully 
possessed  of  sovereign  powers  has  no  right  to  extend  its 
boundaries.  The  acquisition  of  new  possessions  may,  there 
fore,  be  set  down  as  a  prerequisite  to  complete  sovereignty, 
and  wherever  that  right  be  deficient  the  government  in 
question  is  not  a  sovereign  state.  Being  in  possession  of 
all  essentially  sovereign  powers,  the  United  States  holds 
this  right  of  acquiring  territory  * '  over  which  together  with 
all  the  inhabitants  thereon,  it  may  extend  its  sovereignty. '  * 
Most  truthfully  did  Daniel  Webster  declare  to  Calhoun 
that  his  government  has  the  power  "to  acquire  territory 
and  other  property  anywhere,  and  govern  it  as  it  pleases/' 
The  methods  of  such  acquisition  are  various  but  only 
one  of  them  need  concern  us  here.  The  ownership  of  land 
asserted  by  force  of  arms  sufficient  to  make  such  owner 
ship  a  fact,  is  recognized  as  legal,3  nor  is  a  treaty  absolutely 
necessary.  It  is  the  custom  now,  however,  in  order  that 
there  may  be  no  doubt  as  to  the  actual  sovereignty  of  the 
territory  involved,  to  embody  the  cession  in  a  treaty.  In 
the  case  before  us  this  embodiment  took  the  form,  not 
of  specification  of  the  lands  ceded,  as  was  the  case  in  the 
Treaty  of  Paris  in  1898,  but  merely  of  a  detailed  definition 
of  the  boundary  line.4  The  possession  of  the  ceded  province 
is  dated,  not  from  the  treaty,  but  from  the  date  of  the 
completion  of  the  conquest.  "The  conquest  of  California 
by  the  *  *  *  United  States,"  declares  the  Supreme 
Court,  "is  regarded  as  having  become  complete  on  the 
7th  of  July,  1846.  On  that  day  the  government  of  the 
United  States  succeeded  to  the  rights  and  authorities  of 
the  government  of  Mexico. '  '5 


1  Phillimore,  op.  cit.  Vol.  I,  §§  268-270. 

2  American  Ins.  Co.  vs.  Canter,  1  Peters,  511. 

3  Phillimore,  op.  cit.  Vol.  I,  §  255. 

4  Cf.  Article  V,  Appendix  B,  pp.  304-305. 

5  Merryman  vs.  Bourne,  9  Wallace,  592. 

[275] 


32 

Let  us  see  now  whence  comes  this  power.  The  court 
declares  it  to  be  *  *  vested  by  the  Constitution  in  the  United 
States."1  But  with  the  Treaty  of  Guadaloupe  Hidalgo,  as 
with  all  other  treaties  involving  the  acquisition  of  territory, 
there  was  advanced  the  protest  of  its  being  an  infringement 
upon  constitutional  right.  Though  there  have  been  but 
two  bases  in  the  constitution  for  defending  the  extension 
of  the  boundaries  of  the  United  States,2  nevertheless  the 
Court,  Congress,  and  the  Nation,  recognizing  this  as  a 
sovereign  state,  have  declared  this  right  to  acquire  terri 
tory  to  be  an  inherent  privilege  and  element  of  sovereignty. 

Eegarding  the  authority  which  must  be  back  of  negotia 
tions  the  dictates  of  international  law  are  brief  and  to 
the  point.  Agents  who  are  commissioned  to  negotiate 
treaties  may  not  exceed  the  limits  of  their  instructions 
or  the  prescriptions  of  their  full  powers.  Any  agree 
ments  which  they  may  enter  into  beyond  their  authority 
— and  the  whole  of  Trist's  treaty  comes  under  this  head 
— are  called  sponsions  and  are  valid  only  when  approved 
by  the  sponsor's  government.3  It  is  very  fortunate  in 
this  regard,  that  the  treaty  was  not  drawn  up  under  the 
Roman  law,  still  prevalent  among  some  of  the  nations 
of  Latin  origin,  by  which  the  nation  is  bound  by  its  agents ' 
acts.  Had  the  tenth  article,  for  example,  been  allowed  to 
stand,  as  would  have  been  the  case  under  such  a  system 
of  law,  the  result  would  have  indeed  been  disastrous.  The 
violation  of  this  article  would  have  inevitably  come 
about,  as  has  been  pointed  out  above,4  and  consequently 
the  whole  instrument  would  have  become  void  by  one  of 
the  first  laws  of  the  intercourse  of  nations.5 


1  U.  S.  Lyon  et  al.  vs.  Huckabee,  16  Wallace,  414. 

2  Art.    1,    §    8,    Cl.    11.      Granting    Congress   the   power    to    carry 
on  war.     Art.   II,   §   2,   Cl.   2.     Granting  the  President   and  Senate 
the  power  to  make  treaties. 

3  Phillimore,  Vol.  II,  p.  74;  also  Wharton,  §§  130-132. 

4  Vid.  ante,  pp.  270-271. 

G  Cf.  Phillimore,  Vol.  Ill,  §  35. 

[276] 


33 


It  is  necessary  to  say  but  a  word  regarding  the  ques 
tion  as  to  whether  or  not  the  consent  of  the  inhabitants 
should  have  been  called  for  by  the  treaty,  as  is  many 
times  suggested  every  time  an  acquisition  of  territory  is 
made.1  From  the  very  beginning  of  its  policy  of  expan 
sion  the  United  States  has  never  asked  this  consent,  having 
acted  upon  the  basis  that  it  had  the  right  to  acquire  the 
land  in  question  if  the  ceding  power  had  the  right  to  give 
it.  The  inhabitants  of  Louisiana  were  the  subjects  of 
Spain,  France,  and  the  United  States  all  in  the  course  of 
one  month  without  their  consent  being  asked.  Indirectly, 
however,  the  government  has  always  consulted  the  wishes 
of  the  population  of  the  ceded  lands  so  as  not  to  force 
the  condition  of  citizenship  upon  them.  Article  VIII 
provides  for  this  in  the  instrument  under  examination, 
and  all  previous  and  subsequent  documents  of  the  same 
nature  have  a  similar  provision. 

We  have,  thus,  a  brief  review  of  the  questions  of  in 
ternational  law  concerned  in  the  treaty,  and  we  turn  now 
to  an  inquiry  into  the  law  in  the  matter  of  boundary 
extension  as  evidenced  in  the  document.  A  question  of 
this  character,  involving  the  boundaries  of  a  nation,  is, 
as  the  Court  has  well  said,  "more  a  political  than  a  legal 
question."2  in  the  discussion  of  which  the  pronounced  will 
of  the  legislature  is  entitled  to  due  respect  from  the 
judiciary.  But  even  so,  the  legal  phase  of  this  investiga 
tion  into  boundary  extension  is  by  no  means  a  minor  one; 
in  fact,  in  this  particular  case,  the  rulings  of  the  court 
have  played  an  especially  important  part,  and  an  examina 
tion  of  them  is  essential  to  a  thorough  understanding  of  the 
remaining  legal  questions  of  the  treaty  still  to  be  discussed. 

It  is  not  the  purpose  of  this  particular  part  of  the 
investigation  to  tell  of  the  wonderful  stretch  of  land 
acquired  by  the  treaty,3  of  the  hundreds  of  thousands  of 

1  Cf.  Butler,  Vol.  I,  p.  85,  for  a  review  of  this  subject. 
-  Foster  et  al.  vs.  Neilson,  2  Peters,  253,  309. 
3  Cf.  Map,  Appendix  D,  p.  313. 

[277] 


34 

square  miles  of  territory  which,  for  the  most  part,  is  but 
now  beginning  to  show  its  true  worth,  nor  of  the  para 
mount  position  which  the  control  of  ten  degrees  of  sea 
coast  and  plenty  of  good  harbors  on  the  Pacific  has  given 
the  United  States.  It  is  only  the  movement  of  the  boun 
daries,  in  and  of  itself — the  legal  aspect  of  this  move 
ment — and  not  the  extent  of  territory  which  may  be  affected 
—the  mere  question  of  the  changing  of  boundaries,  in  other 
words,  is  what  concerns  us  here.  The  main  point  brought 
out  by  an  examination  of  the  Court  decisions  is  that  the 
boundaries  of  the  United  States  are  fixed  solely  by  the 
political  branches  of  the  government  (i.e.,  Congress  and 
the  executive)  ;  this  they  may  accomplish  through  the 
treaty-making  power,  which  was  the  means  resorted  to  in 
this  case,  or  by  legislation,  or  by  any  one  of  several  dif 
ferent  means.  This,  then,  is  the  important  point  to  remem 
ber  in  this  connection:  the  extent  of  the  boundaries  of 
the  United  States  and  the  limits  of  the  exercise  of  its 
sovereignty  depend,  not  upon  the  conquest  of  its  arms,  but 
upon  the  action  of  its  political  authorities.  The  best  ex 
pression  of  this  element  of  political  power  is  found  in  the 
opinions  and  judgments  of  the  judiciary  and  it  is 
therefore  included  rather  under  what  we  have  taken  the 
liberty  to  call  the  law  of  the  treaty,  than  under 
the  subsequent  heading  of  the  politics  of  the  treaty. 
For  it  is  from  the  Supreme  Court  that  we  get  the 
statement  that  "the  boundaries  of  the  United  States 
as  they  existed  when  war  was  declared  against  Mexico  were 
not  extended  by  the  conquest;  *  *  they  remained 

unchanged,  and  every  place  which  was  out  of  the  limits  of 
the  United  States,  as  previously  established  by  the  political 
authorities  of  the  government,  was  still  foreign."1  Ac 
cording  to  this,  then,  the  Treaty  of  Guadaloupe  Hidalgo, 
being  the  expression  of  the  will  of  these  ' '  political  authori- 


1  Fleming  et  al.  vs.  Page,  9  Howard,  616 ;  cf.  also  U.  S.  vs.  Kice. 
4  Wheaton  (U.S.),  246. 

[278] 


35 


ties  of  the  government, ' '  was  the  thing  that  legally  fixed  the  X 
boundary  of  the  country.  Conquest,  as  one  of  the  simplest 
laws  of  nations,  constitutes  a  valid  title,  as  has  been  set 
forth  above;1  and  so  the  territory  held  by  conquest,  as  re 
garded  by  all  other  nations,  was  a  part  of  the  United  States 
belonging  to  it  "as  exclusively  as  any  territory  within  our 
established  boundaries,  but  yet  it  was  not  a  part  of  the 
Union, '  '2  for  it  was  not  within  the  jurisdiction  of  the  laws 
and  usages  of  nations  to  fix  the  relations  which  should  exist 
between  a  sovereign  state  and  such  places  as  it  might  hold 
by  right  of  conquest.  That  was  reserved  for  the  political 
departments  of  the  government  to  determine,  and  they  did 
so  through  the  treaty-making  power.  In  the  treaty  under 
discussion,  the  fixing  of  the  boundaries  was  readily  dis 
posed  of  by  the  simple  plan  of  designating  the  northern 
boundary  of  Mexico.  The  reason  for  this  is  quite  plain; 
the  United  States  being  in  possession  of  practically  all  of 
the  important  points  of  Mexico,  including  the  capital,  chief 
towns  and  strongholds,  according  to  the  law  of  conquest 
as  supported  by  the  usages  of  nations,  its  title  to  not  only 
Upper  California  and  New  Mexico,  but  the  whole  republic, 
was  perfected;  the  question  therefore,  was,  not  what  pro 
vinces  should  be  ceded  by  Mexico,  but  how  much  should  be 
restored  by  the  United  States.3  The  Treaty  of  Guadaloupe 
Hidalgo,  is,  then,  in  a  strict  sense  of  the  word,  not  a  treaty 
of  cession;  is  makes  no  pretense  at  cession;  it  is  a  mere 
treaty  of  peace  wherein  the  rights  of  the  United  States  as 
secured  by  conquest  are  recognized  and  acknowledged  by 
Mexico.4  The  title  of  the  United  States,  as  said  before, 
commences  and  is  dated  from  the  completion  of  the  con 
quest, — its  jurisdiction  is  considered  established  from  that 


1  Vid.  ante.  p.  275. 

-  Fleming  et  al.  vs.  Page,  9  Howard,  603  et  seq.,  615. 

sCf.  Magoon's  Reports,  p.  41. 

4  Ibid.,  p.  277. 


[279] 


36 

time  on,  and  into  this  matter  the  treaty  did  not  enter.1  In  a 
word,  by  way  of  summary,  the  instrument  in  question  is, 
strictly  speaking,  not  one  of  cession  of  various  lands  to  the 
United  States;  it  is  merely  one  of  peace — a  reiteration  of 
rights  already  secured  by  conquest;  but  the  business  of 
fixing  the  boundaries  of  the  republic,  being  reserved  to  the 
political  divisions  of  the  government,  was  accomplished  by 
them  through  this  document. 

We  come  now  to  the  fourth  of  the  divisions  or  phases 
into  which  the  discussion  of  the  legal  aspect  of  the  treaty 
has  been  divided,  namely,  the  question  as  to  the  force  of  the 
Constitutional  and  Federal  laws  over  the  ceded  territory, — 
in  other  words,  the  inter-relation  of  the  treaty,  the  Consti 
tution  and  the  fundamental  law  of  the  United  States,  with 
reference  to  the  newly  acquired  lands. 

An  examination  of  the  opinions  and  the  various  expres 
sions  of  the  leaders  of  the  administration  with  regard  to  the 
discussion  as  to  the  laws  in  force  over  the  territory,  is  per 
haps  the  best  preliminary  step  necessary  to  an  understand 
ing  of  the  question.  By  the  conclusion  of  the  war  through 
the  treaty,  the  military  government  which  had,  throughout 
the  hostilities,  regulated  virtually  all  the  affairs  of  the  ter 
ritory  occupied,  ceased  to  derive  any  further  power  from 
that  law  of  war  which  justified  its  existence.  "But,"  Sec 
retary  Buchanan  asks,2  "was  there  for  this  reason  no 
government  in  California"  after  the  ratification  of  the 
treaty?  Yes;  the  termination  of  the  war  left  an  existing 
government — de  facto  it  is  true,  but  demanded  by  the  very 
law  of  necessity — a  government  which  was  to  exist  until 
definite  provision  by  Congress  for  territorial  administration 
should  come  about.  "But  above  all,"  he  declares,3  "the 


1  Cf.  Leitensdorf er  vs.  Webb,  20  Howard  176,  for  a  recognition  by 
the  Supreme  Court  of  this  jurisdiction;  it  here  sustains  the  establish 
ment  of  courts  of  justice  directly  after  the  conquest,  by  the  military 
government  in  New  Mexico. 

2  Letter  of  Oct.  7,  1848— House  Ex.  Doc.  No.  1,  2d  Sess.  30th  Cong. 

3  Ibid. 

[280J 


37 


Constitution  of  the  United  States,  *  *  *  was  extended 
over  California  on  the  30th  of  May,  1848,  the  day  on  which 
our  late  treaty  with  Mexico  was  finally  consummated." 
This  statement  is  to  be  borne  in  mind — the  ratification  of 
the  treaty  extended  the  Constitution  in  force  over  the  terri 
tory  annexed ;  we  shall  have  occasion  to  refer  to  it  shortly. 
Turning  to  another  expression  of  the  attitude  of  various 
members  of  the  administration  upon  this  subject,  we  have 
Secretary  of  the  Treasury  Walker's  circular  to  "collectors 
and  other  officers  of  the  customs,"  of  the  same  date  as  the 
above — October  7,  1848.  By  the  treaty  with  Mexico  he 
declares,  California  was  annexed  to  the  United  States  '  *  and 
the  Constitution  is  extended  over  that  territory  and  is  in 
full  force  throughout  its  limits;"  another  straightforward 
declaration  on  the  part  of  the  administration  of  its  stand 
upon  this  question  of  the  inter-relation  of  treaty  and  Con 
stitution.  These  are  but  two  examples  chosen  as  typical 
from  a  number  of  similar  ones.1 

Let  us  stop  right  here  and  examine  the  radical  difference 
between  the  statements  given  above  and  the  character  of 
all  declarations  of  Congress,  of  the  Court  (with  one  excep 
tion)2  or  of  the  executive  upon  the  same  question  before  or 
since  that  time,  respecting  the  relative  position  of 
this  treaty,  or  similar  ones,  and  the  Constitution  and 
Federal  law.  Upon  this  question  the  rulings  of  the 
court  are  perfectly  plain,  straight  to  the  point,  and 
directly  opposed  to  the  position  taken  by  the  adminis 
tration  with  regard  to  the  Treaty  of  Guadaloupe 
Hidalgo  and  the  territory  mentioned  therein.  It  declares 
two  propositions  to  be  established  beyond  controversy: 
(1)  This  country,  as  a  sovereign  nation,  may  acquire 
and  govern  new  territory;  this  has  already  been  dis- 

1  Others  are  letters  of  instructions  from  Sec  'y  of  War  Marcy  to 
Col.    Mason    in    California,    also    various    communications    of    other 
Cabinet  members  as  well  as  the  President.  Cf.  Ex.  Doc.  No.  1,  2d  Sess. 
30th  Cong.;  also  Magoon's  Reports,  p.  102. 

2  This  lone  exception  is  Mr.  Chief  Justice  Taney  's  famous  decis 
ion  in  Dred  Scott  vs.  Sandford,  19  Howard,  393. 

[281] 


38 


cussed1  and  will  not  concern  us  here.  (2)  "The  government 
of  territory  acquired  and  held  by  the  United  States  be 
longs  primarily  to  Congress  and  secondarily  to  such 
agencies  as  Congress  may  establish  for  that  purpose."2 
"These  two  propositions  are  so  elementary,"  the  court 
later  declared,3  "they  so  necessarily  follow  from  the  condi 
tion  of  things  arising  upon  the  acquisition  of  new  territory 
that  they  need  no  argument  to  support  them.  They  are  self- 
evident."  It  is  hardly  possible  to  distort  or  misread  such 
a  statement  as  that;  the  meaning  is  perfectly  clear;  a  mis 
interpretation  is  practically  impossible.  Numerous  other 
cases4  might  be  cited  wherein  the  judgment  is  the  same, 
giving  Congress  or  its  creations  the  sole  power  over  all 
newly  acquired  territory.  Not  once  does  the  Constitution 
enter  into  consideration ;  not  once  is  the  interpretation  made, 
which  we  find  in  the  case  of  the  Polk  administration,  that 
any  treaty  confirming  a  cession  immediately  upon  its  ratifi 
cation,  brought  the  Constitution  into  power  over  the  new 
lands.5 

A  word  as  to  the  arguments  advanced  by  the  adminis 
tration  in  defending  the  theory  that  the  treaty  brought  the 
ceded  territory  under  the  Federal  law.  Secretary  Walker, 
in  the  circular  mentioned  above,  declares  by  way  of  a  proof 
of  this  doctrine,  that  Congress  * '  by  several  enactments  sub 
sequently  to  the  ratification  of  the  treaty,  has  distinctly 
recognized  California  as  a  part  of  the  Union;"  these  en 
actments,  he  maintained,  were  but  a  proof  of  the  apprecia 
tion  of  Congress  of  the  fact  that  the  instrument  under  dis 
cussion  put  the  cession  under  the  Constitution.  True  it  is 


1  Vid.  ante.,  pp.  274-275. 

2  Snow  vs.  United  States,  18  Wallace,  319-320. 

3  Mormon  Church  vs.  United  States,  136  U.  S.,  43. 

*E.g.  Snow  vs.  United  States,  18  Wallace,  317,  320;  Murphy  vs. 
Kamsey,  114  U.  S.,  15,  44;  United  States  vs.  Gratist  et  al.,  14  Peters, 
524,  527. 

5  This  is  true,  excepting,  of  course,  the  Dred  Scott  decision  already 
referred  to,  which  may  be  disregarded  since  it  has  long  since  been 
ignored  and  over-ruled  by  both  Court  and  Congress. 


39 


that  the  authorities  in  California  enforced  the  tariff  and 
navigation  laws  of  the  United  States;  true,  also,  that  the 
Supreme  Court  sustained  their  action.1  But  this  was  done, 
not  because  the  Constitution,  by  virtue  of  the  treaty,  was 
in  force  over  the  territory,  as  Secretary  Walker  and  the  rest 
of  the  administration  would  have  us  believe,  but  because 
Congress  by  its  enactments2  had  extended  the  boundaries  of 
the  United  States  over  the  new  territory.  Nor  did  Congress 
itself  believe  with  the  executive  department  that,  by  act  of 
the  treaty,  the  laws  of  the  country  extended  over  California 
or  any  other  part  of  the  cession ;  for  if  it  did  concur  in  such 
an  opinion,  why  should  it  enact  a  statute  "to  extend  the 
revenue  laws  of  the  United  States  over  the  territory  and 
waters  of  Upper  California  ? ' ';  Why  did  the  very  first  Con 
gress  that  met  see  fit  to  take  similar  action  by  extending  the 
provisions  of  some  previous  revenue  measures  over  Rhode 
Island  and  North  Carolina  after  those  states  had  ratified  the 
already  adopted  Constitution  ?4  By  way  of  confirmation  of 
a  state  of  things  already  brought  about — in  the  latter  case 
by  the  ratification  of  the  Constitution  and  in  the  former  by 
the  signing  of  the  treaty  ?  No ;  the  court  as  quoted  above, 
has  given  the  reason:  "The  government  of  territory  ac 
quired  and  held  by  the  United  States  belongs  primarily  to 
Congress  and  secondly  to  such  agencies  as  Congress  may  es 
tablish  for  that  purpose;" — the  Constitution  is  absolutely 
without  power  in  such  matters;  congressional  action  alone 
is  backed  by  the  proper  authority  in  cases  of  this  sort.  How, 
then,  could  this  treaty — the  product,  it  must  be  remem 
bered,  not  of  Congress,  but  of  the  treaty-making  power,  an 
entirely  different  institution  in  the  government — how  could 
this  document,  in  the  face  of  what  has  just  been  said,  en 
force  the  Constitution  and  the  laws  of  the  United  States 

1  Cross  et  al.  vs.  Harrison,  16  Howard  164,  189-197. 

2  Such  as  that  of  Aug.  12,  1848,  providing  for  post  roads— 9  U.  S. 
Stats.,  chap.  166,  p.  301 ;  or  that  of  Aug.  14,  1848,  regarding  civil  and 
diplomatic  expenses— 9  U.  S.  Stats.,  chap.  175,  p.  320. 

3  9  U.  S.  Stats.,  chap.  112,  p.  400. 
4 1  U.  S.  Stats.,  pp.  99,  126. 

[283] 


40 


over  the  new  territory  ?  Such  would  indeed  be  a  manifest 
infringement  upon  the  privileges  and  authority  of  Con 
gress. 

Closely  associated  with  this  question  of  the  relation  be 
tween  the  Constitution  and  the  treaty,  is  the  one  concerned 
with  the  status  and  government  of  the  new  territory  and  its 
inhabitants  as  influenced  by  the  instrument  under  discus 
sion  ;  to  this,  the  fifth  phase  of  the  ' '  law  of  the  treaty, ' '  we 
now  come.  The  investigation  of  this  particular  point  may 
best  be  divided  under  three  convenient  heads:  first,  the 
property — private,  municipal,  and  government — in  the 
ceded  territory  and  the  effect  of  the  treaty  and  the  cession 
upon  it ;  second,  the  inhabitants,  their  allegiance  and  poli 
tical  rights,  and  the  influence  of  the  change  of  conditions 
upon  their  status ;  and  lastly,  the  government  existing  in  the 
new  lands  at  the  time  of  the  cession,  and  the  effect  of  the 
transfer  of  ownership,  as  enforced  by  the  treaty,  upon  it. 

First,  then,  as  to  the  effects  of  the  treaty  upon  the 
status  of  property  of  all  different  kinds — private,  municipal 
and  government.  "Their  (i.e.,  the  inhabitants')  right  of 
property  remained  undisturbed,"  says  the  court.1  When 
the  formal  transfer  of  the  lands  in  question  was  made 
through  the  treaty,  that  instrument  did  nothing  to  alter  the 
rights  of  holding  property  or  the  relations  of  the  inhabitants 
to  one  another.  We  have  a  strong  proof  of  the  maintenance 
of  these  property-holding  relations  in  the  well-taken  argu 
ment  advanced  in  Congress  by  those  opposed  to  the  intro 
duction  of  slavery  into  the  new  territory.  The  pro-slavery 
adherents  attempted  to  give  slavery  a  legal  basis  in  the  ces 
sion  by  a  construction  of  such  acts  as  the  Missouri  Com 
promise.  This  was  well  met  by  the  opposition  who  argued 
that,  since  by  the  laws  of  Mexico  slavery  had  been  pro 
hibited  in  the  new  territory,  and  since,  as  the  Supreme 
Court  says,  as  quoted  above,  "rights  of  property  remained 
undisturbed"  in  the  ceded  lands,  therefore  it  would  require 

1  Leitendorf er  vs.  Webb,  20  Howard,  177. 

[284] 


41 


an  act  of  Congress  to  overturn  this  "undisturbed"  condi 
tion  of  the  laws  of  property  by  specifically  legislating 
slavery  into  the  territory  in  question.1  The  laws  regulating 
the  relations  of  the  inhabitants  to  each  other  and  to  their 
belongings  were  to  remain  unchanged,  unaffected  by  the 
treaty,  unless  Congress  legislated  otherwise.  We  have  here 
an  excellent  proof  of  the  stability  which  the  law  of  private 
property  maintained  throughout  the  changing  of  the  boun 
daries  as  set  forth  in  the  treaty. 

With  public  lands,  however,  the  case  was  different;  for 
with  the  transfer  of  sovereignty  over  the  territories  came 
the  surrender  by  the  ceding  nation  of  every  vestige  of  its 
sovereignty  before  it  withdrew.  The  holding  of  public 
lands  being  an  attribute  of  the  sovereign  power  in  the 
country,  it  follows  as  a  consequence  so  natural  that  it 
scarcely  merits  attention,  that  these  lands,  along  with  the 
other  elements  of  governing  authority,  reverted  to  the  new 
ruling  government. 

On  the  other  hand,  with  regard  to  the  lands  and  prop 
erties  of  the  pueblos  or  municipalities,  be  it  said  that  they 
did  not  revert  to  the  central  government  to  be  subject  to  re 
distribution  or  even  entire  retention  by  that  authority,  as 
one  might  be  led  to  expect.  On  the  contrary,  we  find  the 
Supreme  Court  of  California  maintaining  that  such  was  not 
the  effect  of  the  conquest,  that  these  municipal  lands  did 
not  become  a  part  of  the  national  domain  by  the  cession 
which  was  given  formal  expression  in  the  Treaty  of  Guada- 
loupe  Hidalgo,  but  that  they  continued  to  be  the  public 
property  of  the  municipalities  as  before  the  war,  unless 
legislative  measures  to  the  contrary  were  passed  by  the 
state.2  The  rulings  of  the  State  Court  on  this  point — 


1  Cf.  on  this  point  Butler  op.  cit.  Vol.  II,  p.  166.     Additional  sup 
port  and  defense  of  the  sacredness  of  the  rights  of  private  property 
from  interference  or  being  affected  by  the  transfer  is  found  in  Ameri 
can  Ins.  Co.  vs.  Canter,  1  Peters,  511. 

2  Hart  vs.  Burnett,  15,  California,  530;  White  vs.  Moses,  21  Cali 
fornia,  34;  cf.  also  Magoon's  "Keports,"  pp.  383,  464-465. 

[285] 


42 


namely,  that  the  treaty  had  no  effect  whatever  upon  the 
pueblo  or  municipal  lands  —  was  later  referred  to  and  fol 
lowed  by  the  United  States  Supreme  Court.1 

Let  us  turn  now  to  the  consideration  of  the  effects  of  the 
document  upon  the  political  status  of  the  inhabitants  —  their 
allegiance  and  their  rights  as  citizens.  The  treaty,  as  has 
been  said,  did  not  affect  the  laws  of  private  property  or 
change  the  ownership  of  municipal  lands;  but  what  it  did 
do,  besides  to  confer  the  public  lands  upon  the  new  sover 
eign,  was  to  give  it  the  right  to  claim,  as  another  element 
of  its  sovereignty  in  the  ceded  territory,  the  allegiance  of 
all  who  remained  therein  with  the  intention  of  becoming 
citizens.2  As  regards  the  status  of  their  political  rights, 
the  treaty  itself  makes  some  provisions;  in  Article  IX  we 
find  that  those  Mexicans  who,  by  complying  with  certain 
prescribed  conditions,  showed  their  intentions  to  become 
citizens  of  the  United  States,  were  to  be  "  incorporated  into 
the  Union  and  admitted"  to  enjoy  the  rights  of  citizens, 
"at  the  proper  time  (to  be  judged  of  by  the  Congress  of  the 
United  States)/'3  Save  for  guarantees  given  them  in  the 
treaty  the  inhabitants  must  submit  to  "such  conditions  as 
the  new  master  shall  impose."*  As  can  be  seen  by  an  ex 
amination  of  the  stipulation  from  the  document  in  question 
which  is  quoted  above,  it  is  very  apparent  that  all  the 
inhabitants  by  the  act  of  cession  were  not  forthwith  en 
dowed  with  citizenship  ;  their  fitness  for  that  position  and 
the  expediency  of  conferring  it  upon  them  were  matters 
"to  be  judged  of  by  Congress."  The  guarantees  extended 
by  the  United  States  in  the  treaty  were,  of  course,  binding 
upon  this  government,  as  Mr.  Justice  Story  has  ably 
pointed  out  ;5  but  so  far  as  citizenship  itself  was  concerned, 

1  Merryman  vs.  Bourne,  9  Wallace,  592. 

2  Leitensdorf  er   vs.   Webb,    20    Howard,    p.    177;    on   the   general 
principles  of  this  point  see  Phillimore,  Vol.  Ill,  pp.  576-596;   also 
Wharton,  op.  cit.,  Vol.  I,  Sects.  3-5. 

3  Cf.  Appendix  B,  p.  306. 

*  American  Ins.  Co.  vs.  Canter,  1  Peters,  541. 

6  <  '  Commentaries  on  the  Constitution.  '  '    Vol.  II,  p.  203. 

[286] 


43 

there  the  treaty  merely  held  out  the  hope ;  it  left  the  actual 
award  to  the  discretion  of  Congress. 

Before  leaving  this  subject  of  the  status  of  affairs  in 
general  in  the  ceded  territory  as  affected  by  the  treaty,  we 
might  include  a  statement  of  the  condition  of  the  govern 
ment  of  the  lands  in  question  and  look  for  the  effects  of  the 
treaty  there,  if  there  be  any.  At  the  time  of  the  signing  of 
that  document  the  existing  government  in  the  lands  con 
cerned  was  purely  military;  it  had  originated  in  the  exer 
cise  of  a  belligerent  right  recognized  by  the  laws  and  usages 
of  nations;  it  was  the  creation  of  the  President  acting, 
through  the  officers  in  the  field,  as  commander-in-chief .  The 
question  is  now,  when  peace  was  declared  was  that  exist 
ing  government  forthwith,  by  the  signing  of  the  treaty, 
demolished  ?  Such  was  the  opinion  of  President  Polk,  who 
declared  it  merely  a  government  whose  existence  was  com 
pelled  "by  the  laws  of  nations  and  of  war"  and  it  would 
"cease  on  the  conclusion  of  a  treaty  of  peace."1  It  being 
the  work  of  the  President  through  the  military  authorities, 
he  might  have  destroyed  it  by  withdrawing  them.  Congress 
could  have  put  an  end  to  it,  but  that  was  not  done.  ' '  The 
right  inference  to  be  drawn  from  the  inaction  of  both  is, 
that  it  was  meant  to  be  continued  until  it  had  been  legis 
latively  changed.  No  presumption  of  a  contrary  intention 
can  be  made. '  '2  This  government  did  not  cease  as  a  matter 
of  course  when  the  territory  was  ceded,  "or  as  a  necessary 
consequence  of  the  restoration  of  peace.  "3  "  The  great  law 
of  necessity,"  as  Buchanan  called  it,  was  largely  responsi 
ble  for  its  continuance.  The  President  seems  to  have  mis 
understood  the  difference  between  government  by  the  code 
of  war  and  government  through  military  occupation,  upon 
which  the  court  has  laid  considerable  stress  in  the  case  cited 
above.  What  the  treaty  under  discussion  did  do  was,  not 

1  House  Ex.  Doc.  No.  70,  1st  Sess.  30th  Cong.    For  a  similar  as 
sertion  on  this  part  see  House  Ex.  Doc.  No.  69,  1st  Sess.  30th  Cong.; 
also  House  Ex.  Doc.  No.  1,  p.  12,  2d  Sess.  30th  Cong. 

2  Cross  et  al.  vs.  Harrison,  16  Howard,  207. 

3  This  is  later  supported  and  followed  in  Dow  vs.  Johnson,   100 
U.  S.,  168. 

[287J 


44 


to  abolish  the  government  existing  in  the  ceded  territory  at 
the  time  of  its  signature,  but  merely  to  strengthen  the  title 
of  the  United  States  to  lands  already  secured  by  conquest, 
and  to  make  those  lands  no  longer  a  seat  of  war.  The  in 
strument  did  not  affect  the  existing  government,  military  as 
it  was,  as  Polk  would  have  us  believe ;  on  the  contrary,  as 
has  been  already  pointed  out  and  as  the  court  has  since  then 
often  affirmed,  it  only  put  an  end  to  the  condition  of  actual 
war  in  the  country,  and  enforced  and  gave  final  basis  to  the 
title  of  the  United  States  to  the  lands  involved. 

In  brief,  we  may  summarize  the  effects  of  the  making 
.of  the  treaty  upon  the  property,  the  inhabitants  and  the 

\'then  existing  government  in  the  cession,  thus:  first,  both 
private  and  municipal  property  remained  unaffected  by  the 
transfer  of  sovereignty,  whereas  the  public  lands,  since  the 
possession  of  them  is  an  attribute  of  the  sovereign  power, 
reverted  to  the  new  owner ;  second,  the  allegiance  of  the  in 
habitants,  like  the  government  lands,  became  due  the  new 
sovereign  state,  and  their  political  rights  in  so  far  as  the 
treaty  did  not  already  determine  them,  were  fixed  according 
to  the  will  of  the  government  now  vested  with  the  su 
preme  power  over  them ;  and  third,  the  existing  government 
was  not  discontinued  immediately  upon  the  making  of  the 
treaty  through  any  power  of  that  instrument. 

The  sixth  and  last  phase  of  the  making  of  the  treaty  in 
its  legal  aspect,  which  needs  no  considerable  attention,  is 
that  concerned  with  the  inquiry  as  to  what  is  the  actual 
power  in  the  United  States  government  vested  with  the  con 
trol  of  the  great  stretch  of  territory  the  cession  of  which  was 
confirmed  by  this  instrument.  What  was  that  institution, 
or  power,  or  authority,  within  the  machinery  of  the  state, 
which,  immediately  upon  the  signing  of  the  treaty,  took 
charge  of  the  new  acquisition?1  There  has  often  been  ad- 

1  It  was  quite  possible  to  have  classified  this  inquiry  under  one  of 
the  groups  immediately  preceding;  it  was,  however,  reserved  for 
separate  discussion  because  it  seemed,  to  a  certain  extent,  to  sum 
marize  the  others,  or  rather,  to  cover  the  essential  point  in  back  of 
the  most  of  them. 

[288] 


45 


vanced  the  argument  that  the  President  and  the  Senate,  act 
ing  through  their  treaty-making  powers,  can  establish  the 
relations  which  are  to  exist  between  the  Federal  government 
and  foreign  territory,  the  acquisition  of  which  has  been 
formally  embodied  in  a  treaty  of  their  making.  In  other 
words,  to  apply  this  to  the  case  at  hand,  the  treaty-making 
department  of  our  government,  by  inserting  in  the  Treaty 
of  Guadeloupe  such  stipulations  as  it  saw  fit,  could  regulate 
the  relation  to  exist  between  the  national  state  and  its  new 
acquisition.  This  theory  is  doing  nothing  more  nor  less 
than  vesting  in  the  President  and  the  upper  house,  powers 
which  in  a  monarchy  belong  to  the  king  and  the  king's 
council.  Under  all  governments  and  throughout  all  times 
it  is  the  sovereign  that  determines  the  status  or  even  the 
making  of  additions  to  the  land,  the  conditions  which  shall 
be  imposed  upon  any  who  are  to  participate  in  the  govern 
ment  of  which  it  is  the  head,  or  their  relations  to  the  rest  of 
the  realm.  In  a  monarchy,  ideally  conceived,  the  sovereign 
power  is  vested  in  the  king  and  his  council;  but  in  a  re 
public,  ideally  conceived,  the  people  constitute  the  sover 
eign.  So  too,  in  the  case  before  us — the  President  and  the 
Senate  are  not  endowed  with  sovereign  power,  but  the  peo 
ple  are,  and  such  being  the  case,  it  is  they — the  people — 
who,  through  their  representatives,  regulate  the  status  of 
newly  acquired  territories.  The  Treaty  of  Guadaloupe 
Hidalgo,  as  the  expression  of  the  will  of  the  treaty-making 
power  of  the  United  States,  could  not  dictate  to  the  sover 
eign  power  in  such  matters  as  the  regulation  of  the  position 
to  be  occupied  in  the  nation  by  the  newly  acquired  territory 
and  its  inhabitants,  or  on  any  of  the  other  questions  sug 
gested  above,  the  settlement  of  which  is  reserved  to  the  peo 
ple,  as  the  sovereign,  through  their  representatives,  namely. 
Congress.  Though  in  this  particular  case  it  did  not  exer 
cise  it,  that  department  of  the  government  has  the  right  to 
supersede  or  displace  any  treaty  or  any  part  of  a  treaty 
by  legislation.  The  people,  as  the  sovereign  power  of  the 
United  States,  acting  by  means  of  Congress,  by  allowing  the 


46 


Treaty  of  Guadaloupe  Hidalgo  to  stand  as  ratified  on  May 
30th,  1848,  gave  their  tacit  consent  thereto,  and  it  is  upon 
this  consent,  and  not  upon  the  will  of  the  treaty-making 
power,  as  expressed  in  that  instrument,  that  its  force  and 
legality  depends. 

We  have  now  come  to  the  second  subject  or  phase  of  the 
discussion  of  the  two  into  which  Part  II  was  divided, 
namely,  the  politics  or,  perhaps  more  correctly,  the  policy 
lying  back  of  the  treaty;  thus  far  we  have  been  concerned 
only  with  a  chronicle  of  the  bare  historical  facts  and  with 
the  stereotyped  legal  aspects  of  the  subject ;  it  shall  be  our 
endeavor  before  concluding  this  essay  to  examine  those  sub 
tle  points  of  statecraft,  the  lines  of  policy,  of  political 
theory  underlying  the  making  of  the  treaty  and  of  which 
that  instrument  was  the  embodiment,  the  outgrowth.  And 
then,  before  we  close,  in  connection  with  this  line  of  thought, 
some  little  consideration  will  be  given  to  a  movement,  which, 
had  it  not  been  for  the  making  of  this  instrument,  would 
at  one  stroke  have  changed  the  map  and  probably  the  fu 
ture  of  North  America. 

In  the  entire  history  of  the  United  States  there  are  very 
few  opportunities  of  getting  an  inner  light  upon  the 
motives  and  ideas  actually  regulating  the  policy  of  the 
'government.  But  one  of  these  few  is  presented  in 
the  diary  of  President  Polk.1  Through  it  we  can  get 
an  insight  into  his  ability,  the  firmness  of  his  policy 
and  purpose,  and  the  independent  and  steadfast — one 
might  almost  say  stubborn — manner  in  which  he  car 
ried  it  out.  Though  far  outshone  by  the  more  famous 
statesmen  of  his  time,  he  was  by  no  means  led  by  them,  for, 
even  after  making  all  proper  allowances  for  the  fact  that 
the  narrative  is  his  own  personal  account,  nevertheless  the 
fact  stands  out  beyond  question  that  it  was  he  who  formed 
and  followed  out  the  policy  of  the  administration — it  was 
he  who,  as  a  climax  to  one  of  the  most  important  periods  in 


1  Cf.  Appendix  C,  p.  309  et  seq. 

[290] 


47 

American  history,  when  it  rested  with  him  alone  to  change 
the  face  of  the  continent,  gave  his  sanction  to  the  Treaty  of 
Guadaloupe  Hidalgo  and  thus  started  it  on  its  way  to  rati 
fication.  Honest  and  fixed  in  his  principles,  he  worked  for 
what  he  firmly  believed  to  be  the  ultimate  good  of  the  coun 
try  ;  "  he  toiled  and  despoiled  for  the  glory  of  the  American 
Union. ' ' 

The  particular  element  of  his  policy  in  which  we  are 
concerned  is  his  management  of  the  annexation  of  Texas,  by 
a  mixture  of  diplomacy  and  bloodshed,  so  as  to  secure  from 
Mexico,  through  the  treaty  before  us,  a  stretch  of  territory 
the  extent  of  which  was  not  contemplated  even  by  his  own 
supporters. 

Much  has  been  said  and  written  of  the  acquisition  of 
California  and  New  Mexico  as  a  purely  pro-slavery  move 
ment.  It  has  often  been  declared  to  be  "the  judgment  of 
history"1  that  this  addition  was  made  "for  the  purpose  of 
strengthening  the  institution  of  slavery."  Von  Hoist  re 
fers  to  the  President  as  "der  Sklavenhalter  Polk"2  and  sug 
gests  that  slavery  extension  was  at  the  bottom  of  the  war 
and  the  treaty  which  closed  it.  Such  might  well  have  been, 
and  probably  was,  the  incentive  to  almost  all  the  support 
which  the  extension  of  the  boundaries  had  amongst  the  peo 
ple  and  statesmen  of  the  time.  But  such  was  not  the  incen 
tive  which  moved  Polk  in  the  formation  of  his  policy  and 
the  consequent  action  of  the  administration  in  endorsing 
the  treaty  (for  it  must  be  remembered  that  the  President's 
plans  were  the  administration's  plans;  as  was  pointed  out 
before,  he  was  led  by  no  one  in  the  formation  of  his  policy). 
The  President  realized,  as  the  majority  of  the  defenders  of 
his  action  in  making  the  acquisition  did  not,  that  the  en 
vironments  of  California  and  New  Mexico  were  most  un 
favorable  for  the  introduction  of  slavery.  "From  the 
nature  of  the  climate  and  products  in  much  the  larger 

1  Foster,op.  cit.,  p.  321. 

2  Op.  cit.,  Vol.  II,  p.  272. 

[2911 


48 


portion  of  it,  it  (slavery)  could  never  exist  and  in  the  re 
mainder  the  probabilities  are  it  would  not."1  In  none  of 
his  private  papers  or  correspondence,  or  in  his  diary,  do  we 
find  any  basis  for  an  argument  justifying  the  ascription  of 
Folk's  action  with  regard  to  the  acquisition  of  territory  to 
this  slavery  extension  motive  which  influenced  so  many  of 
his  supporters.  It  must  be  remembered  that  it  was  the 
President  and  not  his  adherents,  who  set  the  stamp  of  legal 
ity  upon  the  treaty2  and  thus  made  possible  the  retention 
of  those  lands  already  won  by  conquest.  We  must  look 
elsewhere  for  the  cause  of  the  action  taken  by  the  executive. 
Underlying  all  the  expressions  of  his  opinion  upon  the 
subject  we  find  the  one  ruling  motive  of  expansion — expan 
sion  in  the  simplest,  complete  sense  of  the  word ;  he  felt  it 
incumbent  upon  himself  to  advance  the  flag,  to  broaden  the 
extent  of  the  sovereignty  of  the  United  States,  to  acquire 
territory.  That  is  the  motive  out  of  which  sprang  the  so- 
called  Mexican  policy  of  the  administration,  which  found  its 
culmination  in  the  Treaty  of  Guadaloupe  Hidalgo.  This 
policy  in  brief  was  to  support  the  pretentious  claims  of  the 
revolutionists  in  Texas,  whose  annexation  was  the  burning 
question  at  the  time  of  his  coming  to  office,  and  then  on  be 
coming  involved  in  strained  relations  or  even  war  with 
Mexico,  to  bring  about  by  any  means  whatever — justifiable 
or  otherwise — the  acquisition  of  a  large  part  of  the  lands  of 
that  republic.3  And  such  indeed  was  the  result.  It  is, 
then,  to  this  spirit  of  expansion,  expansion  for  its  own  sake, 

1  Message  to  Congress,  Dec.  5,   1848— Ex.  Doc.  No.  1,  p.  14,  2d 
Sess.  30th  Cong. 

2  Via.  ante.,  pp.  273-274. 

3  It  has  not  been  deemed  advisable  to  insert  in  the  text  the  many 
assertions     of     the     President     upon     which     the     above     argument 
is  based;    a  full  list   of   them  would  include   practically  all   of   his 
writings  upon  the  war ;  following  are  a  few  of  them :  Benton  's  ' '  De 
bates/7  Vol.  XVI,  p.  215;   Richardson's  "Messages,"  Vol.  IV,  p. 
587;  ibid.  p.  494;  House  Ex.  Doc.  No.  70,  1st  Sess.  30th  Cong.;  House 
Ex.  Doc.  No.  4,  p.  22,  2d  Sess.  29th  Cong.     All  through  the  diary 
there  is  the  constant  suggestion  of  this  eagerness  for  expansion,  cf. 
Appendix  C,  entries  of  Sept.  4  and  7,  Nov.  9,  1847,  and  Feb.  21,  1848, 
pp.  309-312  inclusive. 

[292] 


49 


which  was  so  evident  as  the  backbone  of  Folk's  Mexican 
policy,  and  not  to  the  sentiment  for  the  extension  of  slavery 
which  moved  so  many  to  support  his  policy, — it  is  to  the 
possession  by  the  executive  of  that  powerful  love  for  ' '  lands, 
more  lands"  that  we  owe  the  great  bound  taken  by  the 
limits  of  the  country  as  given  legal  voice  to  in  the  treaty 
before  us  for  discussion. 

But,  it  may  be  asked,  what  prevented  this  expansion 
policy  being  carried  to  an  extreme  ?  What  forbade  the  ex 
tension  of  the  boundary  line  so  as  to  include  not  only  Cali 
fornia  and  New  Mexico,  but  some  of  the  contiguous  pro 
vinces  as  well, — why  not  the  whole  of  Mexico?  Even  the 
suggestion  of  such  an  inquiry  as  this  might  bring  a  smile 
to  some,  but  we  soon  shall  see  the  necessity  of  the  serious 
consideration  of  this  question,  for  behind  it  lies  the  secret 
the  real  importance  of  the  treaty. 

Some  of  the  more  recent  writers  have  commented  upon 
the  marked  similarity  existing  between  the  Mexican  and  the 
Spanish  wars — the  resemblance  not  only  in  general  aspects 
but  in  detail  as  well.  But  in  following  out  the  comparison 
there  arises  this  natural  question : — since,  by  the  victory  at 
Manila  Bay  the  United  States  felt  it  incumbent  upon  itself 
to  retain  the  Philippines,  how  did  it  happen  that  the  Rio 
Grande  was  fixed  as  the  boundary  in  1848,  and  not  the 
Isthmus  of  Tehuantepec?  The  country  was  completely  at 
the  mercy  of  the  conqueror — far  more  so  than  the  islands 
taken  in  1898;  central  government  it  had  none;  further 
more  it  was  contiguous  territory.  Why  was  it,  then,  that 
the  whole  of  Mexico  did  not  become  a  part  of  its  more 
powerful  neighbor  by  a  very  simple  change  in  the  treaty 
which  closed  the  war? 

Before  answering  this,  let  us  go  back  a  bit.  The  news 
of  the  steadily  increasing  list  of  triumphs  of  American 
arms,  climaxed  by  the  capture  of  the  City  of  Mexico  itself 
in  September,  gave  rise  to  a  very  natural  feeling  among 
the  American  people,  namely,  the  sentiment  that  the  de- 

[293] 


50 


mands  for  indemnity  be  increased;  until  finally  there 
evolved  from  this  an  active  agitation  to  incorporate  all 
of  Mexico  into  the  Union.  As  time  went  on  the  movement 
grew  in  strength;  nor  were  its  supporters  confined  to  any 
particular  section  of  the  country  or  party.  The  many 
advocates  of  slavery  greeted  it  with  eagerness  as  an  oppor 
tunity  to  enlarge  their  institution;  others  of  the  same 
class  were  against  it.  The  movement  found  its  strongest 
support  amongst  those  who  were  indifferent  or  even 
opposed  to  slavery.  Secretary  Walker,  who  was  opposed  to 
slavery  though  a  southerner  by  adoption,  became  the  sup 
porter  of  the  "  all-of -Mexico "  movement  in  the  cabinet.1 
The  newspapers  took  up  the  plan  with  vigor ;  the  ' '  National 
Era,"  one  of  the  chief  anti-slavery  organs  in  the  country, 
advocated  "the  admission  of  all  the  individual  Mexican 
states  as  fast  as  they  should  apply  for  it. '  '2  The  movement 
was  already  beginning  to  take  on  a  definite  shape.  Its 
acceptance  was  looked  upon  as  inevitable  not  only  at  home 
but  abroad  as  well.  Bancroft  wrote  to  Buchanan  from 
London  that  ' '  people  are  beginning  to  say  that  it  would  be 
a  blessing  to  the  world  if  the  United  States  would  assume 
the  tutelage  of  Mexico."3  Still  it  grew  and  grew;  it  was 
already  becoming  formidable;4  all  that  was  necessary  to 
gain  its  object  was  a  little  time.  Suddenly,  from  a  quarter 
where  it  least  awaited  attack,  it  received  its  coup  de  grace. 
By  depriving  it  of  that  essential  extention  of  time,  the  mak 
ing  of  the  Treaty  of  Guadaloupe  Hidalgo  gave  this  "all- 
of -Mexico"  movement  its  finishing  stroke,  and  the  Rio 
Grande,  not  Tehuantepec,  was  to  be  the  boundary. 

1  Cf.  Appendix  C,  p.  311. 

2 ' '  National  Era ' '  of  Aug.  3,  1847,  and  Feb.  3,  1848 ;  cf.  Bourne 
op.  tit.,  p.  236. 

3G.  T.  Curtis'  "Buchanan,"  Vol.  I,  p.  576.  We  may  note  here 
that  the  movement  was  receiving  support  in  Mexico  as  well — the 
Puros  (war)  party,  by  urging  the  injudicious  continuation  of  the 
war,  hoped  to  force  the  United  States  into  keeping  the  whole  country, 
—cf.  Eipley  op.  cit.  Vol.  II,  p.  526. 

*  Von  Hoist  says,  regarding  this  movement,  ' '  Die  Bewegung  war 
stark  genug,  um  die  ernstesten  Besorgnisse  zu  rechtf ertigen. "  Vol. 
II,  p.  274. 

[294] 


51 

It  is  only  by  recent  writers  that  the  gravity  of  this 
movement  and  the  importance  of  the  fact    that    it    was 
crushed  are  being  realized.     The  arguments  advanced  as 
to  the  agency  or  force  to  which  the  credit  of  checking  and 
destroying  it  are  due  are  various.  The  realization  that  every 
expansion  meant  another  slavery  crisis;  the  fact  that  the 
power  in  Congress  was  in  the  hands    of    the    Whigs,    a 
strictly  anti-expansionist  party,  who  had  been  elected  over  a 
year  before  this  and  therefore  did  not  represent  public 
opinion  as  it  was  then:  these  are  but  two  of  a  number     \ 
of  theories  advanced  to  give  basis  to  the  failure  of  theij 
movement.    And  yet,  neither  of  them  cover  the  true  reason,         ~ 
which,  it  seems  to  us,  is  two-fold  in  its  nature :  first,  the   /  *V ) 
sudden  appearance  upon  the  field  of  the  treaty,  as  the 
result  of  Trist's  disobedience  of  orders,  and  then,  second, 
(though  this  is  in  a  way  dependent  upon  the  first)   the 
opposition  of  Polk  to  any  such  movement    (for,   expan 
sionist   though   he   was,    he   believed    in     moderation)1— 
these  two  resulted  in  the  ratification  of  the  treaty  and 
the    effectual    extermination    of    what    portended    to    be, 
indeed,  in  all  probability,  what  would  have  been  one  of 
the  most  sweeping  and  lasting  movements  in  its  effects, 
known  to  American,  if  not  world  history. 

At  the  very  outset  of  this  investigation  it  was  set  down 
as  the  object  in  view  to  "inquire  into  and  point  out  the 
relationship  existing  between  this  vitally  important  docu 
ment  and  the  trend  of  the  powerful  undercurrent,  the 
exact  nature  of  which  was  to  be  determined."  This 
"powerful  undercurrent"  with  regard  to  which  the  treaty 
was  to  play  such  an  important  part  was  simply  that  on- 
sweeping  movement  for  the  acquisition  of  all  of  Mexico— 
the  movement  which,  had  it  attained  its  end,  would  have 

1  Of.  Appendix  C,  p.  311,  entry  for  Xov.  23,  1847.  We  wish  also  to 
note  here  that  this  essay  was  written  before  the  appearance  of  the 
article  on  "The  Treaty  of  Guadalupe-Hidalgo, "  by  Mr.  Jesse  S. 
Beeves  in  the  American  Historical  Review,  V,  309-325,  January, 
1905,  in  which  will  be  found  an  interesting  discussion  of  this  point 
and  of  the  subject  as  a  whole. 

[295] 


52 


wrought  havoc  with  subsequent  American  history.  This 
movement  was  that  one  of  the  "evolutionary  processes" 
(which  go  to  make  up  history)  with  which  we  were  con 
cerned  in  this  work.  The  instrument  in  question  as  the 
outcome  of  Trist's  disobedience  and  Folk's  diplomacy  and 
firmness  in  a  policy  of  expansion  (though  it  be  only  a 
moderate  one),  acted  as  the  direct  and  immediate  cause 
of  the  failure  of  this  "  all-of -Mexico "  movement — and 
therein  lies  its  significance,  therein  is  seen  the  effect  of  its 
coming  upon  history.  That  in  a  word,  sets  forth  the  con 
sequence  of  the  making  of  the  Treaty  of  Guadaloupe 
Hidalgo ;  the  fact  that  it  was  made  at  the  time  and  under 
the  circumstances  and  the  position  it  took  with  regard  to 
the  movement  then  in  progress ;  upon  these  rests  its  position 
in  American  history  as  a  document  of  the  most  funda 
mental  importance.  Extraordinary  in  its  origin,  far 
reaching  and  penetrating  in  its  effects,  by  virtue,  not  only 
of  the  results  which  it  accomplishes,  but  of  the  condition 
of  affairs  which  it  avoided,  it  stands  as  a  landmark  in  the 
history  of  American  diplomacy. 


[2961 


53 


APPENDICES. 

APPENDIX  A. — Extracts  from  official  correspondence  with 
regard  to  the  negotiating  of  a  treaty  of 
peace  or  settlement  with  Mexico,  1845- 
1848. 

APPENDIX  B. — Synopsis  of  the  treaty  signed  at  Guadaloupe 
Hidalgo,  February  2,  1848. 

APPENDIX  C. — Extracts  from  the  diary  of  President  Polk. 

APPENDIX  D. — Map  of  the  territory  involved. 

APPENDIX  A. 
Extracts  from  official  correspondence  with  regard  to 

the  negotiating  of  a  treaty  of  peace  or  settlement  with 

Mexico,  1845-1848. 

(1)  Secretary  of  State  Buchanan  to  Mr.  Slidell.    Nov. 
10,  1845. 

(2)  Secretary  Buchanan  to  Mr.  Trist,    Apr.  15,  1847. 

(3)  Secretary  Buchanan  to  Mr.  Trist.    Oct.  6,  1847. 

(4)  Mr.  Trist  to  Secretary  Buchanan.    Nov.  27,  1847. 

(5)  Mr.  Trist  to  a  "confidential  friend  at  Queretaro." 
Dec.  4,  1847. 

(6)  Secretary  Buchanan  to  the  Mexican  Minister  of 
Foreign  Relations.    Mar.  18,  1848. 

(1)  Secretary  Buchanan  to  Mr.  Slidell.  Nov.  10,  1845.1 
"The  question  of  boundary  may,  *  *  *  be  ad 
justed  in  such  a  manner  between  the  two  republics  as  to 
cast  the  burden  of  the  debt  due  to  American  claimants 
upon  their  own  government,  whilst  it  will  do  no  injury 
to  Mexico.  The  fact  is  but  too  well  known  to  the  world, 
that  the  Mexican  government  is  not  now  in  a  condition 
to  satisfy  these  claims  by  the  payment  of  money. 


1  House  Ex.  Doc.  No.  69,  pp.  33-43,  1st  Sess.  30th  Cong.  By  this 
letter  Mr.  Slidell  was  appointed  to  act  as  commissioner  to  Mexico 
to  ameliorate  the  then  already  strained  relations  between  the  two 
republics. 

[297] 


54 


"Mexico  would  part  with  a  remote  and  detached 
province  (by  ceding  New  Mexico),  the  possession  of  which 
can  never  be  advantageous  to  her;  and  she  would  be  re 
lieved  from  the  trouble  and  expense  of  defending  its 
inhabitants  against  the  Indians.  But  the  President  desires 
to  deal  liberally  by  Mexico.  You  are  therefore  authorized 
to  assume  the  payment  of  all  the  just  claims  of  our  citi 
zens  against  Mexico;  and,  in  addition,  to  pay  five  millions 
of  dollars,  in  case  the  Mexican  government  shall  agree  to 
establish  the  boundary  between  the  two  countries  from 
the  mouth  of  the  Rio  Grande,  up  the  principal  stream  to 
the  point  where  it  touches  the  line  of  New  Mexico ;  thence 
west  of  the  river,  along  the  exterior  line  of  that  province, 
so  as  to  include  the  whole  within  the  United  States,  until 
it  again  intersects  the  river;  thence  up  the  principal 
stream  of  the  same  to  its  source,  and  thence  due  north, 
until  it  intersects  the  42d  degree  of  north  latitude.1 

"There  is  another  subject  of  vast  importance  to  the 
United  States  and  will  demand  your  particular  attention. 
From  information  possessed  by  this  department  it  is  to  be 
seriously  apprehended  that  both  Great  Britain  and  France 
have  designs  upon  California.  *  *  *  Whilst  this  gov 
ernment  does  not  intend  to  interfere  between  Mexico  and 
California,  it  would  vigorously  interpose  to  prevent  the 
latter  from  becoming  either  a  British  or  a  French  colony. 
The  government  of  California  is  now  but 
nominally  dependent  upon  Mexico;  and  it  is  more  than 
doubtful  whether  her  authority  will  ever  be  reinstated. 
Under  these  circumstances,  it  is  the  desire  of  the  President 
that  you  shall  use  your  best  efforts  to  obtain  a  cession  of 
that  province  from  Mexico  to  the  United  States.  *  *  * 
Money  would  be  no  object  when  compared  with  the  value 
of  the  acquisition. ' ' 


1  Cf.  Map,  Appendix  D,  p.  313. 

[298] 


55 


(2)  Secretary  Buchanan  to  Mr.  Trist.  Apr.  15,  1847.* 
«*  *  *  Without  any  certain  information,  however, 
as  to  its  disposition  (i.e.,  that  of  the  Mexican  government 
to  conclude  a  treaty),  the  President  would  not  feel  justified 
in  appointing  public  commissioners  for  this  purpose,  and 
inviting  it  to  do  the  same.  After  so  many  overtures  rejected 
by  Mexico,  this  course  might  not  only  subject  the  United 
States  to  the  indignity  of  another  refusal,  but  might,  in 
the  end,  prove  prejudicial  to  the  cause  of  peace.  The 
Mexican  government  might  thus  be  encouraged  in  the  mis 
taken  opinion,  which  it  probably  already  entertains, 
respecting  the  motives  which  have  actuated  the  President 
in  his  repeated  efforts  to  terminate  the  war. 

"He  deems  it  proper,  notwithstanding,  to  send  to  the 
headquarters  of  the  army  a  confidential  agent,  fully 
acquainted  with  the  views  of  this  government,  and  clothed 
with  full  powers  to  conclude  a  treaty  of  peace  with  the 
Mexican  government,  should  it  be  so  inclined.  In  this 
manner  he  will  be  enabled  to  take  advantage  at  the  pro 
pitious  moment,  of  any  favorable  circumstances  which 

might  dispose  that  government  to  peace. 

******* 

"Whilst  it  is  of  the  greatest  importance  to  the  United 
States  to  extend  their  boundaries  over  Lower  California, 
as  well  as  New  Mexico  and  Upper  California,  you  are  not 
to  consider  this  as  a  sine  qua  non  to  the  conclusion  of  a 
treaty.  You  will,  therefore,  not  break  off  negotiations  if 
New  Mexico  and  Upper  California  can  alone  be  acquired. 
In  that  event,  however,  you  will  not  stipulate  to  pay  more 
than  twenty  millions  of  dollars  for  these  two  provinces 
without  the  right  of  passage  and  transit  across  the  Isthmus 
of  Tehuantepec. 


^en.  Ex.  Doc.  No.  52,  pp.  81-85,  1st  Sess.  30th  Cong.  Also 
Sen.  Eeport  No.  261,  pp.  4-6,  2d  Sess.  41st  Cong.  Mr.  Trist  is  by 
this  letter  given  the  appointment  of  confidential  peace  commissioner 
to  Mexico. 


[299] 


56 

1  'The  extension  of  our  boundaries  over  New  Mexico 
and  Upper  California,  for  a  sum  not  to  exceed  twenty 
millions  of  dollars  is  to  be  considered  a  sine  qua  non  of  any 
treaty.  You  can  modify,  change,  or  omit  the  other  terms 
of  the  pro  jet  if  needful,  but  not  so  as  to  interfere  with  this 
ultimatum. ' ' 

(3)  Secretary  Buchanan  to  Mr.  Trist.     Oct.  6,  1847.* 
******* 

"On  the  2d  instant,  there  was  received  at  this  depart 
ment  from  Vera  Cruz,  a  printed  document  in  Spanish, 
which  purports  to  give  a  history  in  detail  of  the  origin, 
progress,  and  unsuccessful  termination  of  your  negotiations 

with  the  Mexican  commissioners. 

******* 

"Your  original  instructions  were  formed  in  the  spirit 
of  forbearance  and  moderation.  *  *  *  The  terms  *  * 
to  which  you  were  authorized  to  accede,  were  of  the  most 
liberal  character,  considering  our  just  claims  on  Mexico, 
and  our  success  in  the  war.  New  Mexico,  the  Californias, 
several  of  the  northern  states  and  most  of  the  important 
ports  of  Mexico,  were  then  in  our  possession;  and  yet  we 
were  at  that  time  willing  freely  to  surrender  most  of  these 
conquests,  and  even  to  make  an  ample  compensation  for 
those  which  we  retained. 

"Circumstances  have  entirely  changed  since  the  date 
of  your  original  instructions.  A  vast  amount  of  treasure 
has  since  been  expended;  and,  what  is  of  infinitely  more 
value,  the  lives  of  a  great  number  of  our  most  valuable 
citizens  have  been  sacrificed  in  the  prosecution  of  the 
war. 

«*  *  *  rpj^  Mexican  government  have  not  only 
rejected  your  liberal  offers,  but  have  insulted  our  country 
by  proposing  terms  the  acceptance  of  which  would  degrade 
us  in  the  eyes  of  the  world.  They  must  attribute 

our  liberality  to  fear,  or  they  must  take  courage  from  our 

x  House  Ex.  Doc.  No.  69,  pp.  54-56,  1st  Sess.  30th  Cong.  This 
letter  recalled  Mr.  Trist  and  annulled  his  commission. 

[300] 


57 

supposed  political  divisions.  Some  such  cause  is  necessary 
to  account  for  their  strange  infatuation.  In  this  state  of 
affairs,  the  President,  believing  that  your  continued  pres 
ence  with  the  army  can  be  productive  of  no  good,  but  may 
do  much  harm  by  encouraging  the  delusive  hopes  and  false 
impressions  of  the  Mexicans,  has  directed  me  to  recall  you 
from  your  mission,  and  to  instruct  you  to  return  to  the 
United  States  by  the  first  safe  opportunity.  He  has  deter 
mined  not  to  make  another  offer  to  treat  with  the  Mexican 
government,  though  he  will  be  always  ready  to  receive  and 
consider  their  proposals.  They  must  now  first  sue  for 

peace. 

******* 

"Should  you  have  concluded  a  treaty  before  this  dis 
patch  shall  reach  you,  which  is  not  anticipated,  you  will 
bring  this  treaty  with  you  to  the  United  States,  for  the 
consideration  of  the  President;  but  should  you  upon  its 
arrival  be  actually  engaged  in  negotiations  with  Mexican 
commissioners,  these  must  be  immediately  suspended;  but 
you  will  inform  them  that  the  terms  which  they  may  have 
proposed,  will  be  promptly  submitted  to  the  President  on 
your  return.  You  are  not  to  delay  your  departure,  how 
ever,  awaiting  the  communication  of  any  terms  from  these 
commissioners,  for  the  purpose  of  bringing  them  to  the 
United  States." 

(4)  Mr.  Trist  to  Secretary  Buchanan.    Nov.  27,  1847. l 
******* 

"I  knew,  and  I  felt,  that  upon  my  own  decision 
depended,  according  to  every  human  probability,  the  early 
cessation  of  the  war,  or  its  indefinite  protraction.  The 
alternative  presented  by  the  position  in  which  I  found 
myself  was,  on  the  one  hand,  to  keep  on  safe  ground  so  far 
as  I  was  personally  concerned,  and  destroy  the  only  pos 
sible  chance  for  peace ;  on  the  other  hand,  to  assume  respon- 

1  Sen.  Ex.  Doc.  52,  pp.  96-99,  1st  Sess.  30th  Cong.     Mr.  Trist  here 
gives  reasons  for  the  extraordinary  action  which  he  later  took. 

[301J 


58 

sibility,  and  keep  that  chance  alive,  with  some  prospect — by 
no  means  to  be  despised  under  such  circumstances — that 

the  adoption  of  our  projet  might  come  to  pass. 

******* 

"The  only  possible  way  in  which  a  treaty  can  be  made 
is,  to  have  the  work  done  on  the  spot ;  negotiation  and  rat 
ification  to  take  place  at  one  dash.  The  complexion  of  the 
new  Congress,  which  is  to  meet  at  Queretaro  on  the  8th  of 
January  (1848)  is  highly  favorable.  This  will  be  the  last 
chance  for  a  treaty.  I  would  recommend,  therefore,  the 
immediate  appointment  of  a  commission  on  our  part." 

(5)  Mr.  Trist  to  a  "confidential  friend  at  Queretaro." 
Dec.  4,  1847* 

"I  should  not  now  make  the  offer  (to  negotiate  after 
being  recalled)  but  for  my  clear  and  perfect  conviction  on 
these  three  points:  First,  that  peace  is  still  the  desire 
of  my  government:  Secondly,  that  if  the  present  oppor 
tunity  be  not  seized  at  once,  all  chance  for  making  a 
treaty  at  all  will  be  lost  for  an  indefinite  period — probably 
forever:  Thirdly,  that  this  is  the  utmost  point  to  which 
the  Mexican  government  can,  by  any  possibility,  venture. 
*  *  *  Knowing  as  I  do,  that  peace  is  the  earnest  wish 
of  both  (republics),  is  it,  can  it  be  my  duty  to  allow  this 
last  chance  for  peace  to  be  lost,  by  my  conforming  to  a 
determination  of  that  government  (i.e.,  his  own),  taken 
with  reference  to  a  supposed  state  of  things  in  this  country 
entirely  the  reverse  of  that  which  actually  exists  y  *  *  * 
'Now  or  never'  is  the  word;  and  I  need  not  say  to  you  that 
this  word  is  uttered  in  all  sincerity. ' ' 

(6)  Secretary  Buchanan  to  the  Minister  of  Foreign 
Relations  of  the  Mexican  Republic.    Mar.  18,  1848. 2 

"In    recurring   to    the    amendments    adopted    by    the 


1  House  Ex.  Doc.  No.  69,  pp.  63-65,  1st  Sess.  30th  Cong.  Written 
to  Mr.  Edward  Thornton,  at  that  time  Secretary  of  the  British 
Legation  at  the  City  of  Mexico. 

1  Sen.  Ex.  Doc.  No.  60,  pp.  66-72,  1st  Sess.  30th  Cong. 

[302] 


59 

Senate,  it  affords  me  sincere  satisfaction  to  observe  that 
none  of  the  leading  features  of  the  treaty  have  been 
changed.  Neither  the  delineation  of  the  boundaries 
between  the  two  republics;  nor  the  consideration  to  be 
paid  to  Mexico  for  the  extension  of  the  boundaries  of 
the  United  States;  *  *  *  nor  indeed,  any  other  stipu 
lation  of  national  importance  to  either  of  the  parties,  has 
been  stricken  from  the  treaty  by  the  Senate. 

"I  ought  perhaps  here  to  note  a  modification  in  the 
ninth  article,  as  adopted  by  the  Senate,  of  the  analagous 
articles  of  the  Louisiana  and  Florida  treaties.1  Under 
this  modification,  the  inhabitants  of  the  ceded  territories 
are  to  be  admitted  into  the  Union  at  'the  proper  time  (to 
be  judged  of  by  the  Congress  of  the  United  States).' 
Congress,  under  all  circumstances  and  under  all  treaties, 
are  the  sole  judges  of  this  proper  time ;  because  they,  and 
they  alone,  under  the  Federal  Constitution,  have  power 
to  admit  new  states  into  the  Union.  That  they  will  always 
exercise  this  power  as  soon  as  the  condition  of  the  inhabit 
ants  of  any  acquired  territory  may  render  it  proper  can 
not  be  doubted.  *  *  * 

"It  is  truly  unaccountable  how  this  (the  tenth) 
article  should  have  found  a  place  in  the  treaty.2  *  *  * 
If  it  were  adopted  it  would  be  a  mere  nullity  on  the  face 
of  the  treaty,  and  the  judges  of  our  courts  would  be  com 
pelled  to  disregard  it.  It  is  our  glory  that  no  human 
power  exists  in  this  country  which  can  deprive  one  indi 
vidual  of  his  property,  without  his  consent,  and  transfer  it 
to  another.  If  grantees  of  lands  in  Texas,  under  the 
Mexican  government,  possess  valid  titles,  they  can  main 
tain  their  claims  before  our  courts  of  justice.  If  they  have 
forfeited  their  grants  by  not  complying  with  the  conditions 
on  which  they  were  made,  it  is  beyond  the  power  of  this 
government,  in  any  mode  of  action,  to  render  these  titles 

1  Article  III  of  the  Treaty  of  1803,  and  Articles  V  and  VI  of 
the  Treaty  of  1819. 

2  Cf.  Appendix  B,  pp.  306-307. 

[303] 


60 

valid,  either  against  Texas  or  any  individual  proprietor. 
To  resuscitate  such  grants,  and  to  allow  the  grantees  the 
same  period  after  the  exchange  of  the  ratification  of  this 
treaty,  to  which  they  were  originally  entitled,  for  the  pur 
pose  of  performing  the  conditions  on  which  these  grants 
had  been  made,  *  *  *  would  work  manifest  in 
justice.  ' 9 


APPENDIX  B. 

Synopsis  of  the  ''Treaty  of  peace,  friendship,  limits, 
and  settlement  between  the  United  States  of  America  and 
the  Mexican  republic.  Dated  at  Guadaloupe  Hidalgo, 
February  2,  1848. m 

Article  I.  Declaration  of  "firm  and  universal  peace" 
between  the  two  republics. 

Article  II.    Provisional  suspension  of  hostilities. 

Article  III  and  IV.  Provision  for  the  evacuation  of 
Mexican  territory  by  the  forces  of  the  United  States. 

Article  V.  *  *  The  boundary  line  between  the  two  repub 
lics  shall  commence  in  the  Gulf  of  Mexico,  three  leagues 
from  land,  opposite  the  mouth  of  the  Rio  Grande,  other 
wise  called  Rio  Bravo  del  Norte,  or  opposite  the  mouth  of 
its  deepest  branch,  if  it  should  have  more  than  one 
branch  emptying  directly  into  the  sea;  from  thence  up 
the  middle  of  that  river,  following  the  deepest  channel, 
where  it  has  more  than  one,  to  the  point  where  it  strikes 
the  southern  boundary  'of  New  Mexico ;  thence  westerly, 
along  the  whole  southern  boundary  of  New  Mexico  (which 
runs  north  of  the  town  called  Paso)  to  its  western  ter 
mination;  thence  northward  along  the  western  line  of 
New  Mexico,  until  it  intersects  the  first  branch  of  the 
River  Gila  (or  if  it  should  not  intersect  any  branch  of 
that  river,  then  to  the  point  on  the  said  line  nearest  to 

1  The  more  important  articles  are  given  in  full ;  as  are  also  such 
parts  as  were  amended  or  stricken  out  by  the  United  States  Senate. 

[304] 


such  branch,  and  thence  in  a  direct  line  to  the  same) ; 
thence  down  the  middle  of  the  said  river,  until  it  empties 
into  the  Rio  Colorado ;  thence  across  the  Rio  Colorado,  fol 
lowing  the  division  line  between  Upper  and  Lower  Cali 
fornia,  to  the  Pacific  ocean. ' n 

The  rest  of  this  article  deals  with  minor  provisions 
regarding  the  boundary,  including  the  appointment  of  a 
commissioner  and  surveyor  by  each  of  the  two  govern 
ments  to  "designate  the  boundary  line  with  due  pre 
cision.  ' ' 

Articles  VI  and  VII.  Free  navigation  of  the  Gulf  of 
California  and  the  Colorado  and  Gila  Rivers  to  vessels  and 
citizens  of  the  United  States.2 

Article  VIII.  Citizenship  of  such  Mexicans  as  were 
in  the  ceded  territory  at  the  time  of  its  transfer  of  owner 
ship.  Those  who  remained  "in  the  said  territory  after 
the  expiration  of  one  year  from  the  date  of  the  exchange 
of  ratification  of  this  treaty"  were  considered  to  have 
elected  to  become  citizens  of  the  United  States. 

Article  IX.  Following  is  the  more  important  part  of 
this  article  as  drawn  up  by  Mr.  Trist  and  the  Mexican 
commissioners  at  Guadaloupe  Hidalgo,  February  2,  1848 : 
"The  Mexicans  who,  in  the  territories  aforesaid,  shall  not 
preserve  the  character  of  citizens  of  the  Mexican  republic, 
conformably  with  what  is  stipulated  in  the  preceeding 
article,  shall  be  incorporated  into  the  Union  of  the  United 
States,  and  be  admitted  as  soon  as  possible,  according  to 
the  principles  of  the  Federal  Constitution,  to  the  enjoy 
ment  of  all  the  rights  of  citizens  of  the  United  States.  In 
the  meantime,  they  shall  be  maintained  and  protected  in 
the  enjoyment  of  their  liberty,  their  property,  and  the 
civil  rights  now  vested  in  them  according  to  the  Mexican 
laws.  With  respect  to  political  rights,  their  condition  shall 


1  Cf.  Map,  Appendix  D,  p.  313. 

2  These  two  articles  were  amended  by  Article  IV  of  the  Treaty 
of  1853,  which  concluded  the  so-called  Gadsden  Purchase. 

[305] 


62 


be  on  an  equality  with  that  of  the  inhabitants  of  Louisiana 
and  the  Floridas,  when  these  provinces,  by  transfer  from 
the  French  republic  and  the  crown  of  Spain,  became  ter 
ritories  of  the  United  States. ' ' 

The  Senate,  in  its  consideration  of  the  treaty,  struck 
out  the  above  paragraph  and  substituted  the  following, 
which  was  the  reading  of  the  article  in  full  as  finally 
adopted : 

"The  Mexicans  who,  in  the  territories  aforesaid,  shall 
not  preserve  the  character  of  citizens  of  the  Mexican 
republic,  conformably  with  what  is  stipulated  in  the  pre- 
ceeding  article,  shall  be  incorporated  into  the  Union  of  the 
United  States  and  be  admitted  at  the  proper  time  (to  be 
judged  of  by  the  Congress  of  the  United  States)  to  the 
enjoyment  of  all  the  rights  of  citizens  of  the  United  States, 
according  to  the  principles  of  the  Constitution;  and  in 
the  meantime  shall  be  maintained  and  protected  in  the 
free  enjoyment  of  their  liberty  and  property,  and  secured 
in  the  free  exercise  of  their  religion  without  restriction."1 

Article  X.  (This  article  was  stricken  out  by  the  Senate. 
Following  is  the  text  of  its  more  important  paragraphs)  : 

"All  grants  of  land  made  by  the  Mexican  government 
*  *  *  in  territories  previously  appertaining  to  Mexico, 
and  remaining  for  the  future  within  the  limits  of  the 
United  States,  shall  be  respected  as  valid,  to  the  same 
extent  that  the  same  grants  would  be  valid  if  the  said 
territories  had  remained  within  the  limits  of  Mexico.  But 
the  grantees  of  land  in  Texas  *  *  *  who,  by  reason 
of  the  circumstances  of  the  country,  since  the  beginnings 
of  the  troubles  between  Texas  and  the  Mexican  govern 
ment,  may  have  been  prevented  from  fulfilling  all  the 
conditions  of  their  grants,  shall  be  under  obligation  to  ful 
fill  the  said  conditions  within  the  periods  limited  in  the 
same,  respectively;  such  periods  to  be  now  counted  from 


1  This  was  adopted  in  the  Senate  by  a  vote  of  42  to  4 ;   Sen.  Ex. 
Doc.  No.  52,  p.  21,  1st  Sess.  30th  Cong. 

[306] 


63 


the  date  of  the  exchange  of  ratifications  of  the  treaty;  in 
default  of  which,  the  said  grants  shall  not  be  obligatory 
upon  the  State  of  Texas,  in  virtue  of  the  stipulations  con 
tained  in  this  article. 

"The  foregoing  stipulation  in  regard  to  grantees  of 
land  in  Texas  is  extended  to  all  grantees  of  lands  in  the 
territories  aforesaid,  elsewhere  than  in  Texas,  put  in  pos 
session  under  such  grants;  and  in  the  default  of  the  ful 
filment  of  the  conditions  of  any  such  grant,  within  the  new 
period,  which  as  above  stipulated,  begins  with  the  day  of 
the  exchange  of  ratifications  of  this  treaty,  the  same  shall 
be  null  and  void. ' n 

Article  XI.  The  United  States  to  exercise  strict  con 
trol  over  the  "Indians  and  savage  tribes"  inhabiting  the 
ceded  territory.  One  unimportant  change  was  made  in 
this  article  before  final  ratification.2 

Article  XII.  The  payment  to  be  made  by  the  United 
States  to  Mexico.  The  original  of  this  article  contained 
a  cumbersome  and  somewhat  lengthy  description  of  the 
mode  of  payment  to  be  followed  out.  As  amended  by  the 
Senate  and  as  finally  adopted,  that  part  specifying  the 
sum  to  be  paid  read  thus : 

"In  consideration  of  the  extension  acquired  by  the 
boundaries  of  the  United  States,  as  defined  in  the  fifth 
article  of  the  present  treaty,  the  government  of  the  United 
States  engages  to  pay  to  that  of  the  Mexican  republic  the 
sum  of  fifteen  millions  of  dollars. ' ' 

Following  the  above  comes  a  brief  outline  of  the  mode 
of  payment. 

Article  XIII.  The  United  States  to  pay  all  claims  due 
to  Mexico  from  the  conventions  of  1839  and  1843. 

Articles  XIV  and  XV.  The  Mexican  government 
exonerated  from  all  just  claims  of  American  citizens;  the 


1  Stricken  out  by  a  vote  of  44  to  11 ;  Sen.  Ex.  Doc.  No.  52,  p.  18, 
1st  Sess.  30th  Cong. 

2  This  article  was  abrogated  by  Article  II  of  the  Treaty  of  1853. 

[307] 


64 


same  to  be  paid  by  the  United  States  to  an  amount  not 
exceeding  three  and  one-quarter  millions  of  dollars. 

Article  XVI.  The  right  to  fortify  its  own  territory 
guaranteed  each  of  the  contracting  parties. 

Article  XVII.  Kevival  of  the  "treaty  of  amity,  com 
merce,  and  navigation"  of  1831  for  a  period  of  eight  years 
following  the  ratification  of  the  present  treaty. 

Articles  XVIII,  XIX,  and  XX.  Arrangement  of  tem 
porary  duties  and  tariffs. 

Article  XXI.  "If  unhappily  any  disagreement  should 
hereafter  arise  between  the  governments  of  the  two  repub 
lics,  *  *  the  said  governments  *  *  *  do  promise 
to  each  other,  that  they  will  endeavor  in  the  most  sincere 
and  earnest  manner,  to  settle  the  differences  so  arising, 
*  using  for  this  end  mutual  representations  and 
pacific  negotiations ;  and  if  by  these  means  they  should  not 
be  enabled  to  come  to  an  agreement,  a  resort  shall  not  on 
this  account  be  had  to  reprisals,  aggressions,  or  hostilities 
of  any  kind,  by  the  one  republic  against  the  other,  until 
the  government  of  that  which  deems  itself  aggrieved,  shall 
have  maturely  considered  *  *  *  whether  it  would 
not  be  better  that  such  difference  should  be  settled  by  the 
arbitration  of  commissioners  appointed  on  each  side,  or 
by  that  of  a  friendly  nation ;  and  should  such  a  course  be 
proposed  by  either  party,  it  shall  be  acceded  to  by  the 
other,  unless  deemed  by  it  altogether  incompatible  with 
the  nature  of  the  difference,  or  the  circumstances  of  the 
case. ' ' 

Article  XXII.  Rules  to  be  observed  in  case  of  the 
possible  outbreak  of  war,  concluding  with  the  following 
paragraph : 

"And  it  is  declared  that  neither  the  pretense  that  war 
dissolves  all  treaties,  nor  any  other  whatever,  shall  be  con 
sidered  as  annulling  or  suspending  the  solemn  covenant 
contained  in  this  article  *  *  V 

Article  XXIII.    Provision  for  the  exchange  of  ratifica- 

[308] 


65 


tions  "in  four  months  from  the  date  of  the  signature  of 
the  present  treaty." 

In  the  original  treaty  as  drawn  up  on  February  2, 
1848,  there  was  appended  an  "additional  and  secret 
article ' '  which  ran  thus : 

"In  view  of  the  possibility  that  the  exchange  of  the 
ratifications  of  this  treaty  may,  by  the  circumstances  in 
which  the  Mexican  republic  is  placed,  be  delayed  longer 
than  the  term  of  four  months  fixed  by  its  twenty-third 
article  for  the  exchange  of  ratifications  of  the  same,  it  is 
hereby  agreed  that  such  delay  shall  not  in  any  manner, 
affect  the  force  and  validity  of  this  treaty,  unless  it  should 
exceed  the  term  of  eight  months,  counted  from  the  date 
of  the  signature  thereof. 

' '  This  article  is  to  have  the  same  force  and  virtue  as  if 
inserted  in  the  treaty  to  which  this  is  an  addition/'1 

APPENDIX  C. 

Extracts  from  the  diary  of  President  Polk.2 
"Sept.  4  (1847).— If  the  war  is  still  further  prolonged, 
I  said  I  would  be  unwilling  to  pay  the  sum  which  Mr. 
Trist  had  been  authorized  to  pay,  in  settlement  of  a  boun 
dary  by  which  it  was  contemplated  that  the  United  States 
would  acquire  New  Mexico  and  the  Calif ornias;  and  that 
if  Mexico  continued  obstinately  to  refuse  to  treat,  I  was 
decidedly  in  favor  of  insisting  on  more  territory  than  the 
provinces  named.  I  expressed  the  opinion  further  that  as 
our  expenses  had  been  greatly  enlarged  by  the  obstinacy 
of  Mexico  in  refusing  to  negotiate,  since  Mr.  Trist 's  instruc 
tions  were  prepared  in  April  last,  if  a  treaty  had  not  been 

1  This  ' '  additional  article ' '   was  stricken  out  by  the   Senate  by 
a  vote  of  48  to  2  and  the  treaty  therefore  received  its  final  ratifica 
tion  without  it.    Sen.  Ex.  Doc.  No.  52,  p.  14,  1st  Sess.  30th  Cong. 

2  There   is    a    type-written    transcript    of   this   unpublished    docu 
ment  in  the  Lenox  Library,  New  York,  prepared  by  George  Bancroft. 
These  extracts  have  been  collected  from  Bourne,  op.  cit.  pp.  230-241; 
Schouler  "Historical  Briefs,"  pp.  121-124;  Hart  "History  told  by 
Contemporaries,"  Vol.  IV,  pp.  32-34. 

[309] 


66 

made  when  we  next  heard  from  Mexico,  that  his  instruc 
tions  should  be  modified."  The  President  writes  that  he 
had  Trist  recalled  "because  his  remaining  longer  with  the 
army  could  not  probably  accomplish  the  objects  of  his  mis 
sion,  and  because  his  remaining  longer  might  and  probably 
would  impress  the  Mexican  government  with  the  belief  that 
the  United  States  were  so  anxious  for  peace  that  they 
would  ultimately  conclude  one  on  Mexico's  terms.  Mexico 
must  now  sue  for  peace,  and  when  she  does  we  will  hear 
her  propositions. 

"Sept.  7  (1847).— The  distinct  question  submitted  (to 
the  Cabinet)  was  whether  the  amount  which  Mr.  Trist  had 
been  authorized  to  pay  for  the  cession  of  New  Mexico  and 
the  Californias,  and  the  right  of  passage  through  the 
Isthmus  of  Tehuantepec  should  not  be  reduced,  and  whether 
we  should  not  now  demand  more  territory  than  we  now 
did.  All  seemed  to  agree  that  the  maximum  sum  to  be  paid 
for  the  cession  above  described  should  be  reduced.  Mr. 
Buchanan  suggested  that  this  sum  be  reduced  from  30  to 
15  millions.  *  *  *  He  suggested  also  that  the  line 
should  run  on  the  parallel  of  30°  or  31°  30'  of  North 
Latitude  from  the  Rio  Grande  to  the  Gulf  of  California, 
instead  of  on  the  parallel  of  32°  which  Mr.  Trist  had  been 
authorized  to  accept.  *  *  *  I  expressed  myself  as 
being  entirely  agreed  to  reduce  the  sum  to  be  paid  from 
30  to  15  millions  and  to  modify  the  line  as  suggested  by 
Mr.  Buchanan. 

"Nov.  9  (1847). — My  views  were  in  substance  that  we 
would  continue  the  prosecution  of  the  war  with  an  in 
creasing  force,  hold  all  the  country  we  had  conquered,  or 
might  conquer,  and  levy  contributions  upon  the  enemy  to 
support  the  war,  until  a  just  peace  was  obtained;  that  we 
must  have  indemnity  in  territory,  and  that,  as  a  partial 
indemnity,  the  Californias  and  New  Mexico  should  under 
no  circumstances  be  restored  to  Mexico,  but  that  they 
should  henceforward  be  considered  a  part  of  the  United 
States  and  permanent  territorial  governments  be  estab- 

[310J 


67 

lished  over  them;  and  that  if  Mexico  protracted  the  war 
additional  territory  must  be  acquired  as  further  indemnity. 
*  *  *  I  am  fixed  in  my  course,  and  I  think  that  all  the 
cabinet  except  Mr.  Buchanan  still  concur  with  me,  and  he 
may  do  so  yet. 

"Nov.  23  (1847).— Mr.  Walker  (Secretary  of  the 
Treasury)  was  for  taking  the  whole  of  Mexico,  if  neces 
sary,  and  he  thought  the  construction  placed  upon  Mr. 
Buchanan's  draft1  by  a  large  majority  of  the  people  would 
be  that  it  looked  to  that  object.  I  replied  that  I  was  not 
prepared  to  go  to  that  extent,  and  furthermore  that  I  did 
not  desire  that  anything  I  said  in  the  message  should  be 
so  obscure  as  to  give  rise  to  doubt  or  discussion  as  to  what 
my  true  meaning  was;  that  I  had  in  my  last  message 
declared  that  I  did  not  contemplate  the  conquest  of 
Mexico. 

"Jan.  4,  .( 1848). —This  information  (i.e.  that  Trist  had 
renewed  negotiations  in  spite  of  his  recall)  is  most  surpris 
ing.  Mr.  Trist  has  acknowledged  the  receipt  of  his  letter 
of  recall;  he  possesses  no  diplomatic  powers.  He  is  acting 
no  doubt  upon  General  Scott's  advice.  He  has  become  the 
perfect  tool  of  Scott.  He  is  in  this  measure  defying  the 
authority  of  his  government.  *  *  *  He  may,  I  fear, 
greatly  embarrass  the  government. 

"Feb.  21,  (1848).— I  decided  that  under  all  circum 
stances  I  would  submit  it  (the  treaty)  to  the  Senate  for 
ratification,  with  a  recommendation  to  strike  out  the  tenth 
article.  I  assigned  my  reasons  (to  the  Cabinet)  for  this  de 
cision.  They  were,  briefly,  that  the  treaty  conformed  on  the 
main  question  of  limits  and  boundaries  to  the  instructions 
given  Mr.  Trist  in  April  last, — and  that  though,  if  the 
treaty  was  now  to  be  made,  I  should  demand  more,  per 
haps,  to  make  the  Sierra  Madre  the  line,  yet  it  was  doubt- 

1  This  refers  to  a  paragraph  drawn  up  by  Mr.  Buchanan  for  the 
annual  message,  saying  that,  in  event  of  the  occupation  of  the  whole 
of  Mexico  by  the  United  States  forces,  "we  must  fulfill  that  destiny 
which  Providence  may  have  in  store  for  both  countries. ' ' 

[311] 


68 


ful,  whether  this  could  ever  be  obtained  by  the  consent  of 
Mexico.  I  looked  to  the  consequences  of  its  (the  treaty's) 
rejection.  A  majority  of  one  branch  of  Congress  is  opposed 
to  my  administration;  they  have  falsely  charged  that  the 
war  was  brought  on  and  is  continued  by  me,  with  a  view  to 
the  conquest  of  Mexico,  and  if  I  were  now  to  reject  a  treaty 
made  upon  my  own  terms  as  authorized  in  April  last,  with 
the  unanimous  approbation  of  the  Cabinet,  the  probability 
is,  that  Congress  would  not  grant  either  men  or  money  to 
prosecute  the  war.  Should  this  be  the  result,  the  army  now 
in  Mexico  would  be  constantly  wasting  and  diminishing  in 
numbers,  and  I  might  at  last  be  compelled  to  withdraw 
them,  and  then  lose  the  two  provinces  of  New  Mexico  and 
Upper  California  which  were  ceded  to  us  by  this  treaty. 
Should  the  opponents  of  my  administration  succeed  in 
carrying  the  next  presidential  election,  the  great  proba 
bility  is  that  the  country  would  lose  all  the  advantages 
secured  by  this  treaty.  I  adverted  to  the  immense  value  of 
Upper  California,  and  concluded  by  saying  that  if  I  were 
now  to  reject  my  own  terms  as  offered  in  April  last,  I  did 
not  see  how  it  was  possible  for  my  administration  to  be 
sustained. 

"Feb.  29,  (1848).— From  what  I  learn,  about  a  dozen 
Democrats  will  oppose  it  (the  treaty),  most  of  them  be 
cause  they  wish  to  acquire  more  territory  than  the  line  of 
the  Rio  Grande  and  the  provinces  of  New  Mexico  and 
Upper  California  will  secure.  *  *  *." 


[312] 


[313] 


71 


SOURCES   CITED  AND  USED   IN  THE  PREPARA 
TION  OF  THIS  ESSAY. 

PEIMAEY.1 
Benton,  Thos.  H. 

11  Abridgment    of    the    Debates    of    Congress,    1789-1856."     17 

vols.,  1861. 
Elmes,  Webster. 

11  Executive  Departments  of  the  United  States  at  Washington." 

1  vol.,  1880. 
Hall,  Frederick. 

"The    Laws    of     Mexico — a    Compilation    and     Treatise."       3 

vol.,  1885. 
Hart,  Albert  Bushnell,  editor. 

"American  History  Told  by  Contemporaries."    4  vols.,  1897-1901. 
Eeports,  Supreme  Court,  of  the  United  States. 
Eevised  Statutes  of  the  United  States.    1  vol.,  2d  ed.,  1878. 
Eichardson,  James  Daniel,  editor. 

"A  Compilation  of  the  Messages  and  Papers  of  the  Presidents, 

1789-1899." 

Senate  and  House  Executive  Documents,  Journals  and  Eecords.2 
Statutes  at  Large  of  the  United  States.    Vols.  1-30,  1789-1899. 
Treaties  and  Conventions  of  the  United  States.     1  vol.,  1889. 
Wharton,  Francis. 

"A  Digest  of  the  International  Law  of  the  United  States,  taken 
from  Documents  .  .  .  and  Decisions."  3  vols.,  2d 
ed.,  1887. 

SECONDAEY. 

Bancroft,  Hubert  Howe. 

"History  of  Mexico."     6  vols.,  1885. 


1  Though  rts  proper  place  is  in  this  list  of  primary  sources  the 
diary  of  President  Polk  has  not   been   entered  here  as  it  has  not 
been  published  as  a  separate  and  complete  volume.     Cf.  Appendix  C. 

2  Those  cited  are  mainly  from  the  1st  and  2d  Sessions,  30th  Con 
gress;  specific  reference  will,  however,  be  given  as  each  document  is 
noted. 

1 315] 


72 


Bikle,  Henry  Wolfe. 

' '  An  Essay  on  the   Constitutional   Power   of   Congress   over  the 
Territory  of  the  United  States."    1  vol.,  1901. 

Bourne,  Edward  G. 

"Essays  in  Historical  Criticism."  1  vol.,  1901. 

Bryce,  James. 

"The  American  Commonwealth."     2  vols.,  3d  ed.,  rev.,  1895. 

Butler,  Charles  Henry. 

' '  The  Treaty-making  Power  of  the  United  States. ' '    2  vols.,  1902. 

Chase,  Lucien  B. 

' '  A  History  of  the  Polk  Administration. ' '     1  vol.,  1850. 

Cutts,  James  Madison. 

"The  Conquest  of  California  and  New  Mexico  in  the  years  1846- 
1847."     1  vol.,  1847. 

Foster,  John  W. 

"A  Century  of  American  Diplomacy,  1776-1876."     1  vol.,  1902. 

Furber,  G.  C. 

"The  Mexican  War."     1  vol.,  1848. 

Hart,  Albert  Bushnell. 

"Actual   Government   as   Applied   under   American   Conditions." 

1  vol.,  2d  ed.,  rev.,  1904. 

"Foundations  of  American  Foreign  Policy."     1  vol.,  1901. 
Hittell,  Theodore  H. 

"History  of  California."    4  vols.,  1885. 
Hoist,  Hermann  Eduard  von. 

' '  The  Constitutional  and  Political  History  of  the  United  States. ' ' 

Lalor's  and  Mason's  Translation.1    8  vols.,  1881. 
Jay,  William. 

"A    Review    of    the    Causes    and    Consequences    of   the    Mexican 

War."    1  vol.,  2d  ed.,  1849. 
Jenkins,  John  S. 

"History  of  the  War  Between  the  United  States  and  Mexico." 

1  vol.,  1859. 
Ladd,  H.  O. 

' '  History  of  the  War  with  Mexico. ' '    1  vol. 
Livermore,  Abiel  Abbott. 

"The  War  with  Mexico  Reviewed."     1  vol.,  1850. 


1  On  important  points  the  original  work  has  been  consulted, — 
"Verfassung  und  Demokratie  der  Vereinigten  Staaten  von 
Amerika."  4  vols.,  1873,  1878,  1881,  and  1884. 

[316] 


73 


Magoon,  Charles  E. 

' '  Eeports  on  the  Law  of  Civil  Government  under  Military  Occupa 
tion  by  the  Forces  of  the  United  States.'"    1  vol.,  1902. 
Mansfield,  Edward  D. 

<  <  The  Mexican  War. ' '    I  vol.  1848. 
Phillimore,  Sir  Eobert. 

"Commentaries  on  International  Law."     4  vols.,  3d  ed.,  1879. 
Bamsey,  Albert  C.,  translator. 

"History  of  the  War  between  Mexico  and  the  United  States." 

1  vol.,  1850. 
Eandolph,  Carman  F. 

' '  The  Law  and  Policy  of  Annexation. ' '    1  vol.,  1901. 
Eeid,  Whitelaw. 

"Problems  of  Expansion."     1  vol.,  1900. 
Eipley,  E.  S. 

"The  War  with  Mexico."    2  vols.,  1849. 
Schouler,  James. 

"A  History  of   the   United   States  of  America   under  the   Con 
stitution."    6  vols.,  rev.  ed.,  1899. 

"Historical  Briefs."     1  vol.,  1896. 
Scott,  Lieut.  General  Winfield. 

"Memoirs."       2  vols.,  1864. 
Snow,  Freeman. 

"Treaties  and  Topics  in  American  Diplomacy."     1  vol.,  1894. 
Wheaton,  Henry. 

"Elements    of    International    Law."      W.    B.    Lawrence,    editor. 

1  vol.,  1855. 
Wilson,  Woodrow. 

"A  History  of  the  American  People."    5  vols.,  1902. 
Wright,  General  M.  J. 


2  Submitted  by  Mr.  Magoon  as  law  officer  of  the  Division  of  In 
sular  Affairs  to  Secretary  of  War  Eoot,  and  published  by  order  of 
the  latter.  They  may  therefore  be  regarded  as  official  documents. 


RETURN  TO  the  circulation  desk  of  any 
University  of  California  Library 

or  to  the 

NORTHERN  REGIONAL  LIBRARY  FACILITY 
Bldg.  400,  Richmond  Field  Station 
University  of  California 
Richmond,  CA  94804-4698 

ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

•  2-month  loans  may  be  renewed  by  calling 
(510)642-6753 

•  1-year  loans  may  be  recharged  by  bringing 
books  to  NRLF 

•  Renewals  and  recharges  may  be  made  4 
days  prior  to  due  date. 

DUE  AS  STAMPED  BELOW 


MAY  g  1  2m 


12,000(11/95) 


Y 

®s 


VC  50562 


